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TINGLING v. SECRETARY OF HHS

November 1, 1983

LLOYD F. TINGLING, Plaintiff, against SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.


The opinion of the court was delivered by: CARTER

CARTER, District Judge

Plaintiff, Lloyd Tingling, commenced this action pursuant to 42 U.S.C. § 405(g) to review a final determination of the Secretary of Health and Human Services (the "Secretary") denying his claim for disability insurance benefits. The Secretary moves for an order pursuant to F.R.Civ.P. 12(c), granting judgment on the pleadings, and plaintiff cross-moves for summary judgment pursuant to F.R.Civ.P. 56. *fn1" At issue is whether the Secretary's determination that plaintiff is not "disabled," as that term is defined in the Social Security Act (the "Act"), is supported by substantial evidence, 42 U.S.C. § 405(g). Careful examination of the entire administrative record convinces the Court that it is not, and that the matter must be remanded for further proceedings.

 Mr. Tingling, now 62 years of age, worked as a New York City Housing Police Officer in the Harlem area from October, 1961 through May, 1981. In May, while responding to a call in a police car, he injured his lower back when the car stopped suddenly. *fn2" On September 3rd, after this accident, Tingling filed for disability insurance with the Social Security Administration. He claimed that he could no longer work due to constant pain in his back; he could not lift things and he was able to sit for short periods of time only. (Tr. 14) He complained of sharp pains and decreased strength in his right hand. (Tr. 47) He noted pain in his arms as well. (Tr. 19)

 Tingling also described breathing problems which he experienced after an operation he underwent in 1977 to remove a benign tumor of the larynx. (Tr. 72, 73, 78) He maintained that he was unable to breathe in places where there was likely to be any smoke. He claimed that he was prohibited from attending social affairs, theaters, or other indoor recreations as a result of his breathing difficulties. (Tr. 50)

 Dr. Richard Neudorfer, who examined Tingling after his accident, concluded that plaintiff was totally disabled with respect to his former employment and partially disabled with respect to any sort of work, and that even light duty assignments that Tingling might be able physically to perform would present problems in view of Tingling's inability to work in a smoke tainted environment.

 His report, made subsequent to his last examination of Tingling on November 23, 1981, described the basis for his conclusions. He diagnosed Tingling's back problem as a "mildly severe restriction of the lumbar spine, associated with an exacerbation of severe low back pain." (Tr. 76) He noted that his examination of plaintiff revealed pain in the left lower extremity, but no evidence of actual neurologic deficit. He also noted Tingling's pain and numbness in his right hand, although EMG and nerve conduction studies performed in June, 1981 were normal. His report stated that Tingling had been confined in bed for two to three days due to pain.

 Dr. Williams, who performed the operation on plaintiff's larynx and subsequently saw plaintiff for problems associated with sinusitis, recommended that plaintiff work in the fresh air as much as possible, and avoid smoke congested atmospheres. (Tr. 78) A more recent report on this aspect of plaintiff's condition made by Dr. Allan Abramson was apparently not included in the record, although plaintiff referred to it in his disability insurance application. (Tr. 61)

 Determination

 The Secretary's decision to deny benefits to Tingling is based upon the findings of the Administrative Law Judge ("ALJ"), who considered the case in a hearing on April 19, 1983. *fn3" In his decision, the ALJ notes Tingling's subjective complaints and the medical evidence which Tingling cites, but dismisses them. He justifies the disposal of this evidence by relying on the results of certain medical tests reported in the record, including those performed by Dr. Neudorfer. These tests indicated that Tingling functioned within normal limits in certain areas. The ALJ found, therefore, that Tingling's subjective complaints and his claim concerning his inability to perform any work were unsupported by the record and that Tingling was not prevented from engaging in substantial gainful activity. (Tr. 10)

 In reviewing the ALJ's conclusion, the Court cannot make a de novo determination. Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980). It is the Secretary's province to make finding of fact and decisions regarding the merits of a disability claim. The Secretary must weigh all the evidence and resolve any material conflicts. Richardson v. Perales, 402 U.S. 389, 399, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Flowers v. Harris, 616 F.2d 776, 778 (5th Cir. 1980). The standard controlling judicial review is whether the Court finds the Secretary's decision supported by substantial evidence, 42 U.S.C. § 405(g). The Court is obligated, however, to scrutinize the entire record to determine whether the Secretary's findings have rational support in the evidence upon which she relied. See Scherer v. Schweiker, 530 F. Supp. 128, 130 (S.D.N.Y. 1982) (Weinfeld, J.).

 The Court is unable to find that the ALJ's conclusion in this case has sufficient support from the evidence presented. The various facets of the claimant's case that must be considered are: (1) the objective medical evidence; (2) diagnoses or medical opinions based on these facts; (3) subjective evidence of pain and disability testified to by the claimant and family, or others; and (4) the claimant's educational background, age and work experience. Gold v. Secretary of Health, Educ. and Welfare, 486 F. Supp. 690, 692 (S.D.N.Y. 1980).

 In basing his decision almost exclusively on certain "normal" test results, the ALJ focused too narrowly on one aspect of the claimant's case, in disregard of considerable evidence to the contrary. This was improper. Flores v. Department of Health, Educ. and Welfare, 465 F. Supp. 317, 320 (S.D.N.Y. 1978); see Garcia v. Califano, 463 F. Supp. 1098, 1105 (N.D. Ill. 1979).

 First, the ALJ failed to give adequate weight to both plaintiff's oral and written testimony. Because pain, standing alone, may constitute a disabling condition under the Act, Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979), the ALJ must deal seriously with subjective evidence of pain in evaluating the total evidence, Garcia v. Califano, supra, 463 F. Supp. at 1103, and articulate fully his reasons for rejecting those claims. Stewart v. Harris, 509 F. Supp. 31, 35 (N.D. Cal. 1980). Rejection of subjective complaints of pain merely because they have not been confirmed by laboratory or clinical tests is unwarranted. Kroh v. Schweiker, 539 F. Supp. 216, 217 (E.D. Pa. 1982). Moreover, the ALJ's rejection of plaintiff's complaints can hardly be thoroughly considered based upon a 20-minute interview in which he directed only two inquiries toward determining how plaintiff's pain affected his ability to work. The ALJ remarked negatively on plaintiff's credibility in this regard, but failed to clarify the basis on which he reached this conclusion.

 Second, the ALJ erred in considering Dr. Neudorfer's testimony. This Court has emphasized consistently that special weight be given to medical reports submitted by an applicant's attending physician. Chiappa v. Secretary of the Dep't of Health, Educ. and Welfare, 497 F. Supp. 356, 359 (S.D.N.Y. 1980) (Sofaer, J.); see also Oppenheim v. Finch, 495 F.2d 396, 398 (4th Cir. 1974). *fn4" Unless contradicted by substantial evidence, the expert opinions of a treating physician as to the existence of a disability are binding on the factfinder. McLaughlin v. Secretary of Health, Educ. and Welfare, supra, 612 F.2d at 705.Instead, the ALJ placed reliance on a report made by the Social Security Administration's review physician, Dr. Langman (Tr. 33), who did not examine or treat the plaintiff but based his judgment solely on the reports made by two of claimant's treating physicians: Dr. Neudorfer and Dr. Williams. The review physician concluded that Tingling could stand for six hours a day, lift and carry up to 50 pounds, that Tingling had a ...


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