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May 29, 1981

Leonardo LEYVA, Plaintiff,
Patricia Roberts HARRIS, Secretary of Health and Human Services, Defendant

The opinion of the court was delivered by: WEINFELD

This is an appeal pursuant to 42 U.S.C. ยงยง 405(g) and 1383(c)(3) seeking review of the final decision of the Secretary of Health and Human Services ("Secretary") that plaintiff Leonardo Leyva's period of disability ended as of January 1979, so that his benefits under the Social Security Act terminated in March 1979. The parties cross-move for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The only issue is whether the Secretary's decision that plaintiff was no longer "disabled," as that term is defined in the Act, *fn1" is supported by "substantial evidence." *fn2"

In reviewing the administrative record, the Court neither substitutes its judgment for the Secretary's nor acts as a "rubber stamp." *fn3" Rather, it makes a searching inquiry to determine if the record contains " "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " *fn4" In doing so, the Court considers objective medical facts, diagnoses or medical opinions based thereon, subjective evidence of pain or disability, and the claimant's educational background, age, and work experience. *fn5" Although the ultimate burden of proof is with plaintiff, in a case like this one, where plaintiff has already established "an impairment disabling him ... the burden of going forward with evidence devolves upon the Secretary who must then show that the claimant, given his age, education, work experience and physical shortcomings, possesses the capacity to perform alternate work." *fn6"

 After a word-by-word examination of the entire administrative record, the Court does not have a "settled conviction" that the determination of the Secretary is supported by substantial evidence, and accordingly the case is reversed and remanded to the Secretary for proceedings not inconsistent with this opinion.

 Plaintiff is a forty-six year old immigrant from Cuba who, after he arrived in the United States in 1968, worked as a warehouse helper lifting boxes as heavy as fifty to sixty pounds. He first began feeling ill in 1975, when he started to miss work for days or weeks at a time, and finally in September 1977 he applied for disability benefits, complaining of diabetes and an arthritic back. At the time, he said he could no longer lift heavy objects or work around the house. His doctor, Manuel Perez, was of the view that Leyva could not do any work; he wrote that the plaintiff has "severe lumbo sacral pain, vertebrae protrude problems ... (and) cannot sit for very long and he is in terrible pain when he has to get up. He can't lift more than 3-5 lbs. He cannot bend. Climbing is difficult. Prognosis is poor. I think he will always have trouble. He also has hypertension (which with medication) was 140/90." On the basis of Leyva's application, Dr. Perez's letter, and an interviewer's observations that plaintiff could not sit still for any length of time and held his back while standing, the Social Security Administration granted benefits.

 After a routine review of his continuing eligibility for disability benefits, Leyva's benefits were terminated effective March 1979 after a finding that his disability had ceased as of January 1979. After a hearing before an administrative law judge ("ALJ"), at which plaintiff appeared pro se, together with his godson, a State police officer, the decision to terminate was upheld in June 1979. This decision was affirmed in August 1979 by the Social Security Administration Appeals Council.

 The original decision to terminate benefits was based in large measure on the report of Dr. Constantine Ladopoulos, to whom the Social Security Administration referred Leyva in January 1979. Dr. Ladopoulos found some arthritis of four to five years' duration present but no atrophy. He said that Leyva had the ability to walk two to three blocks, stand for a half hour, lift up to twenty pounds, and bend with pain. Blood pressure was 160/100. The doctor found tenderness in the lower lumbar area of the spine and back pain radiating down the right leg. The final diagnosis was hypertension and discogenic disease of the lumbar spine.

 This report is significant not only because the Secretary relied so heavily on it but also because it does not on the whole contradict other medical evidence in the record nor is it inconsistent with plaintiff's own testimony before the ALJ; moreover, while Dr. Ladopoulos did not specifically venture an opinion as to plaintiff's capacity to work, *fn7" some of plaintiff's treating physicians, who found similar objective clinical findings, did. Their view was that he was not capable of working at his usual job.

 Thus Dr. R. Sartnick of plaintiff's neighborhood medical and dental center wrote in February 1979 that, based on plaintiff's medical condition which he had followed since January 1978, he believed plaintiff was not "capable of working at his usual job." Dr. Luis Navarro, who treated plaintiff from February through May, 1979, was of the view that plaintiff could not do any work due to his diabetes, hypertension, and spinal problem, although he did not elaborate. Dr. John Moseley, who performed an x-ray examination of plaintiff at Dr. Ladopoulos' request in January 1979, made a diagnosis of minimal hypertrophic spondylosis in the lower lumbar spine; he did not venture an opinion on the consequences thereof.

 The reports of all these physicians, taken with the report of Dr. Perez in 1977 which led to plaintiff's initial receipt of benefits, paint a rather consistent picture. Plaintiff suffers from diabetes and hypertension, both of which are apparently controlled by drugs although the objective evidence shows that the hypertension has deteriorated since 1977. *fn8" However, plaintiff's most severe problem is his back problem, which is indicated by both objective manifestations as well as subjective pain and verified by x-rays.

 The ALJ, however, rejected plaintiff's claim of pain based on observation of plaintiff at the hearing and also upon consideration of plaintiff's daily activities. Thus, it is further necessary to consider those activities.

 Leyva lives alone on the fifth floor of a walkup apartment building. He goes downstairs once a day to pick up the mail and, if necessary, shops at that time at a store a half block away. He does not go downstairs a second time on any given day unless necessary. He uses the subway when he must to visit some doctors, and he walks to the neighborhood health center, about six blocks away, but stops when he gets tired or his leg hurts. He has friends in his building with whom he socializes and who do favors for him. If there are family gatherings or he visits friends in New Jersey, he is always picked up and driven there in a car. Although he is able to do his own cooking, he is unable to clean his four-room apartment completely, and when he does do some cleaning he sits a while.

 He wakes up each morning with severe back pain. After taking a pill and then sleeping for another half hour, he is relieved of pain for four or five hours, if he remains in a "peaceful position." He also takes drugs for hypertension and diabetes.

 Thus, plaintiff's treating physicians had an unfavorable view of his work ability, and the examining doctor for the Secretary made similar clinical findings but did not venture an opinion on plaintiff's work capacity. Normally, the expert opinion of a treating physician as to a claimant's disability is binding on the Secretary in the absence of substantial evidence to the contrary. *fn9" Thus, the Court considers whether there is substantial evidence in the record to support the ALJ's determination that plaintiff's pain was not disabling.

 It is well settled that subjective pain, whether or not accompanied by objective medical evidence, can provide the basis for a finding of disability. *fn10" Of course, the ALJ is not bound by medical reports or statements of the claimant but may evaluate the credibility of a claimant based on all the evidence. *fn11" Every medical report in the record concerning plaintiff's back ...

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