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DESMOND v. SCHWEIKER

August 30, 1982

MILDRED DESMOND, Plaintiff,
v.
RICHARD S. SCHWEIKER, Secretary of Health and Human Services, Defendant



The opinion of the court was delivered by: NEAHER

MEMORANDUM OF DECISION AND ORDER

 NEAHER, District Judge.

 This is an action brought under 42 U.S.C. ยง 405(g) for judicial review of a final decision of the Secretary of Health and Human Services (Secretary) which denied plaintiff's application for Social Security disability insurance benefits. That decision was, of course, based upon the findings and conclusions of an administrative law judge (ALJ) made after a de novo hearing held on July 25, 1979. In reviewing those findings, "Congress has instructed us that the factual findings of the Secretary, if supported by substantial evidence, shall be conclusive." Rutherford v. Schweiker, 685 F.2d 60 at 62 (2d Cir. 1982, slip op. 4307 at 4308). This means "that factual issues need not have been resolved by the Secretary in accordance with what we conceive to be the preponderance of the evidence." Id.

 "Substantial evidence" has been defined as

 
"more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."

 Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971), quoting from Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938).

 Plaintiff was 46 years old, 5'1" in height, and weighed 200 pounds at the time of her hearing. Tr. 29, 58, 116. *fn1" She is married, has three years of high school, and began working in 1967 after raising her children. Tr. 22, 23, 25. Her last employment was as clerk-typist in a medical office for six and a half years. Tr. 23, 25. That work required sitting about seven hours, standing about an hour with some walking, and doing some filing in addition to typing patients' billings and statistical data. Tr. 74.

 On March 26, 1976, her employer placed her on disability due to back pain. Tr. 23, 146. She was hospitalized on April 2 for a myelogram examination, which indicated a herniated disc. Tr. 145. She was later hospitalized at the N.Y.U. Medical Center Hospital where she came under the care of Dr. Arthur F. Battista, a neurosurgeon, and showed improvement after a period of bed rest. Tr. 146, 148. She was discharged on May 5, 1976, with his recommendation for conservative therapy and weight reduction in view of her "somewhat obese" condition. Id. She was seen again by Dr. Battista in September 1976, who noted her "significant" reduction in weight to 154 pounds, her household activities, and her ability to climb stairs. Tr. 148. His examination found "no limitation of movements" and "no focal muscle weakness detectable." Id. He thought that in a month she might achieve "a level of activity which will allow her to return to part time employment." Id.

 On October 16, 1976 plaintiff's period of disability with her employer ended. Tr. 23. She stated that she saw her doctor and feeling slightly better, believed Dr. Battista's opinion that she was able to return to work. Tr. 23, 78, 79. She therefore applied for State unemployment benefits and received $95 weekly until November 1977, but found no work during that year. Tr. 25, 26. *fn2" In fact, on July 31, 1977, she entered La Guardia Hospital for the removal of a breast tumor which proved to be a benign lipoma, and was discharged on August 3, 1977. Tr. 102.

 On June 26, 1978 plaintiff filed her application for disability benefits, claiming "asthma, spinal problem affecting left leg and back," with onset date of March 26, 1976. Tr. 58. Shortly before and after the filing, she was treated by Dr. Henry Levis, who reported on August 29, 1978, that "Patient still has pain in lower back, pain in left knee, tenderness in medial joint," was "very obese," and "has definite problem." Tr. 106-09. He found, however, that she could sit and stand for a half hour, walk 1 or 2 blocks, lift or carry 5 to 10 pounds, and that her ability to perform fine and gross hand motions was "OK." She could not, however, climb stairs, or bend and kneel. Tr. 109. Dr. Levis gave no opinion as to whether or not plaintiff could return to work.

 On September 8, 1978 plaintiff was examined on behalf of the Bureau of Disability Determinations by Dr. Kenneth E. Seslowe, a specialist in orthopedic surgery. He found tenderness in the left lumbosacral region along the course of the sciatic nerve, observing that plaintiff was obese but "in no acute distress." X-rays taken at the examination revealed evidence of the old myelogram but none of any fracture or dislocation. He concluded that her ailment was "chronic lumbosacral sprain, left sided sciatica." In his opinion she could walk 5 blocks, sit for an hour at a time, and walk one flight of stairs, and noted that fine and gross motions of her upper extremities were unaffected. Tr. 119.

 On November 5, 1978 plaintiff was again admitted to La Guardia Hospital, complaining of longstanding pain in the left knee. Dr. Harvey H. Lewis, an orthopedic surgeon then attending her, ordered an arthroscopy which revealed that she had chondromalacia of the patellofemoral joint, *fn3" not a torn meniscus. His report notes she was discharged two days later in "improved condition." Tr. 122.

 On February 13, 1979 plaintiff was examined a second time at the request of the Bureau of Disability Determinations. The examining orthopedic specialist, Dr. Irving Mauer, noting her obesity, concluded after orthopedic and x-ray examinations that plaintiff has an obvious kyphoscoliosis *fn4" and a postural low back derangement which limits her activities. Noting that plaintiff did not have surgery after the myelogram, he saw no evidence of nerve root pressure secondary to disc herniation. He concluded that plaintiff could not bend but could walk about 4 or 5 blocks, stand about 2 hours, lift 5 pounds, and have no difficulty sitting for 2 hours, or with finely [or] gross manipulation of her hands. Tr. 129.

 On April 16 and again on July 18, 1979 -- the latter date being a week prior to plaintiff's hearing -- Dr. Harvey Lewis wrote two letters "To Whom It May Concern" stating that although she had been under his care for a year, therapy treatments had not helped her "multiple complaints." He opined that she was currently permanently disabled and "should have Social Security Disability payments" since she cannot go up and down stairs, *fn5" ...


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