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October 13, 1981

Salvatore MINUTO, Plaintiff,

The opinion of the court was delivered by: POLLACK

This case involves an appeal from a denial of Social Security disability benefits. The Secretary has moved for judgment on the pleadings. Neither party has submitted a memorandum of law.

Salvatore Minuto is a 39 year old man, born in Italy, who speaks no English and who has only a fifth grade education. On September 6, 1979, he sustained a back injury while lifting a compressor at his construction job.

 A hearing was held on Minuto's claim for disability benefits on October 20, 1980, at which an interpreter was present and Minuto was represented by counsel. On December 8, 1980, the Administrative Law Judge denied the claim for benefits, finding that "Regulation 404.1513 and Rule 201.23, Table No. 1 of Appendix 2, Subpart P, Regulations No. 4 directs a conclusion that the claimant ... is not disabled." (Finding No. 11).

 On March 3, 1981, after accepting two additional medical reports in support of claimant's case, the Social Security Appeals Council denied Minuto's request for review of the ALJ's decision. On May 7, 1981, Minuto commenced an action in this Court to overturn the Secretary's decision.


 The Social Security Act defines disability in substance as "an inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A) (1976).

 Though the Social Security Act is a remedial statute, which must be "liberally applied, " Marcus v. Califano, 615 F.2d 23, 29 (2d Cir. 1979); Cutler v. Weinberger, 516 F.2d 1282, 1285 (2d Cir. 1975), it is clear that the burden of proving disability is on the claimant, 42 U.S.C. § 423(d)(5) (1976); Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980); Gold v. Secretary of H.E.W., 463 F.2d 38, 41 (2d Cir. 1972).

 Moreover, "(i)t is not the function of a reviewing court to determine de novo whether the claimant is disabled." Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980). Rather, the factual determinations of the Secretary are conclusive unless unsupported by substantial evidence; that is, "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S. Ct. 206, 216, 83 L. Ed. 126 (1938)).

 "In reaching a conclusion as to disability, both objective and subjective factors are to be considered. These include objective medical facts, diagnoses or medical opinions based on such facts, subjective evidence of pain or disability testified to by the claimant or other witnesses, and the claimant's educational background, age and work experience." Parker, supra, 626 F.2d at 231; Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978).

 "Once the claimant has established a prima facie case, by showing that his impairment prevents his return to his prior employment, the burden shifts to the Secretary, who must produce evidence to show the existence of alternative substantial gainful work which exists in the national economy and which the claimant could perform, considering not only his physical capability, but as well his age, his education, his experience and his training." Parker, supra, 626 F.2d at 231.


 According to his testimony at the hearing, Minuto has fairly constant pain in his lower back and right leg. He wakes up three or four times a night because of the pain. (Record at 32). While he can feed himself, Minuto needs assistance in putting on his shoes and socks. (R. 34). He cannot shop for food, prepare his meals or do household chores. (R. 33). He can drive short distances. (R. 30).

 Though his doctor has suggested it, Minuto has refused all permission for a myelogram to ascertain the extent of his condition. (R. 32).

 Before the hearing, the Social Security Administration had Minuto examined by two doctors, both of whom were specialists in general surgery rather than orthopedists. Dr. Samir K. Dutta diagnosed Minuto's ailments as a "low-disc derangement, possible L4-L5 level." (R. 74). He noted that movement in the right leg was somewhat limited. (R. 73). He found there was spinal spasm and that spinal flexion was limited to about 80 degrees. Moreover, he observed that "(t)he patient had difficulty squating (sic) because he cannot bend his right knee properly. He can, however, get up from the bed easily and can lie down on the bed easily without turning on his side." (R. 74).

 Dr. Dutta thought Minuto "should be able to walk 5-6 blocks; stand for 1 hour; sit for 1-2 hours; lift up to 20 lbs." (R. 74).

 Dr. Benjamin Tan thought Minuto had a "possible slipped disc with neurologic findings at the lower lumbar spine." (R. 83). He also noted "mild degenerative osteoarthritis of the lumbosacral spine" on the basis of X-rays which also noted a small spur arising from the L4 vertebra. (R. 83). Dr. Tan also noted that deep tendon reflexes were absent in the right knee jerk. (Id.)

 Dr. Tan thought Minuto could occasionally carry or lift up to 20 lbs. and could sit for up to 2 hours, stand or walk for up to 4. According to him, Minuto was not able to squat, crawl or climb. (R. 85).

 At the hearing, the ALJ received Dr. Elliot Gross' electrodiagnostic examination of Minuto, which indicated "evidence of a right L3-4-5 radiculopathy." (R. 92). Stedman's Medical Dictionary (3d lawyer's ed. 1972) ...

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