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ESSIG v. SECRETARY OF HHS

December 29, 1981

Robert ESSIG, Plaintiff,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant



The opinion of the court was delivered by: MCLAUGHLIN

MEMORANDUM AND ORDER

This action is brought pursuant to Section 205(g) of the Social Security Act ("Act"), 42 U.S.C. § 405(g) to review a final determination of the Secretary of Health, Education and Welfare ("Secretary") *fn1" which denied the claimant's application for disability insurance benefits.

 For the reasons set forth below, this matter is remanded to the Administrative Law Judge ("ALJ") to develop a record that includes medical evidence as to the claimant's ability to sit, stand, and use public transportation. Although the ALJ determined that the claimant retained the residual capacity to engage in substantial gainful employment (14) *fn2" , this determination should be reevaluated after complete findings on the above enumerated issues, in order to determine whether the claimant possesses a realistic ability to work.

 1. Procedural History.

 The claimant's application for disability insurance benefits was first denied by the Social Security Administration on August 5, 1977. (61-66). Reconsideration was granted by the Administration, but the application was re-denied shortly thereafter. (68).

 A de novo hearing, at the claimant's request, was held before an Administrative Law Judge on May 24, 1978. (22-60). Regrettably, the claimant was not represented by counsel at the hearing. On June 5, 1978, the ALJ determined that the claimant was not under a disability, as defined under Sections 216(i) and 223 of the Act (5-14), at any time before the date of the decision. Upon an affirmance by the Appeals Council of the Social Security Administration, the ALJ's decision was made the final determination of the Secretary. The claimant asserted his rights under § 405(g) and sought review in this Court of the Secretary's decision within sixty days of receiving notice of the decision as prescribed by the provision.

 2. The Alleged Disability.

 The facts developed before the ALJ reveal that the claimant is a forty-one year old man, who lives with his wife and four children. (32-33). The claimant is a high school graduate, and received training at the Police Academy. (35). In addition to being a New York City Police Officer, the claimant's past jobs include working as a bus driver, mailman, and hotel clerk. (36-38).

 The claimant alleges that he became unable to work on June 24, 1976, as the result of a hip injury. According to the claimant, he first injured his hip in January, 1976, and reinjured it in June, 1976. (39). Although he returned to work as a gas dispenser in August, 1976, he stopped working after four weeks because of pain associated with his hip injury. He has not worked or sought employment since August, 1976.

 The claimant saw two physicians in connection with his hip injury. The first, Dr. Parisi, was unable to diagnose the injury. (41). He then saw an orthopedic surgeon, Dr. Rothermel, who suggested a total hip replacement. This replacement was performed in March, 1977. (42-43). The claimant last saw a physician in connection with his hip injury in August 1977. (47).

 The claimant contends that he is in constant pain as a result of his hip injury. He has not driven a car since August, 1977 because the pain impedes his ability to get in and out of cars (35), and he cannot take public transportation to work for fear of falling as he boards the bus or train. (58).

 Despite these claims, the record reveals that he takes no medication for the pain (45), and that he can walk about one-half mile on level ground before the onset of pain (46). He was found to have mild pain on flexion beyond 100 degrees with muscle weakness in hip flexors (pulling knee to chin) (95). His main activities involve walking and sitting in the yard, weather permitting, and watching television (49).

 3. The Law.

 Although Section 405(g) of the Social Security Act limits the scope of this Court's review of the Secretary's final decision, this provision is not as restrictive as a literal reading might initially suggest. Under this section, "the findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive." The Second Circuit, however, has consistently indicated that this standard must be broadly construed in light of the Act's beneficent purpose. The Act is remedial in nature, and the "substantial ...


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