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RIVERS v. HECKLER

January 4, 1984

ARTHUR RIVERS, Plaintiff,
v.
MARGARET M. HECKLER, Secretary of Health and Human Services, Defendant



The opinion of the court was delivered by: POLLACK

OPINION AND ORDER

 MILTON POLLACK, Senior United States District Judge

 Plaintiff commenced this action, pursuant to the Social Security Act, 42 U.S.C. § 405(g), to obtain judicial review of a final decision by the Secretary of the Department of Health and Human Services, which determined that under the provisions of the Act and the regulations thereunder the plaintiff's disability and entitlement to disability insurance benefits had ceased in February, 1981.

 The parties have submitted cross motions for judgment on the pleadings pursuant to Fed. R. Civ. Proc. 12(c). For the reasons appearing hereafter, plaintiff's motion for judgment on the pleadings will be granted and the decision of the Secretary will be reversed.

 I. Factual and Procedural Background

 Plaintiff was born on March 10, 1928 and had no formal education beyond the seventh grade. He was found to be disabled within the meaning of the Social Security Act beginning December 31, 1973, due to low back pathology and peripheral vascular disease of his left leg, and accordingly he began receiving disability benefits at that time.

 Prior to the onset of his disability, plaintiff was employed as a taxicab driver. According to the facts presented in the record, plaintiff has not been employed since 1974, except for a period of one and a half days in 1979 or 1980 during which he worked as a bookbinder, a job that, according to his testimony, he was asked to leave because his physical condition prevented him from doing the work.

 In early 1981, it was determined that plaintiff's medical disability had ceased because his physical impairment was no longer sufficiently severe to prevent him from engaging in "substantial gainful activity," and that therefore his entitlement to benefits had terminated, effective February, 1981. After this determination was upheld upon reconsideration, a de novo hearing before an Administrative Law Judge was held at plaintiff's request on April 15, 1982.

 Plaintiff was unrepresented at the ALJ hearing and was the only person who testified. A transcript of the hearing, as well as the documentary evidence considered by the ALJ, has been placed before the court by way of the Secretary's answer.

 The documentary evidence consisted of the following consultive reports prepared at the government's request: (1) a report by an orthopedic surgeon of a January 7, 1981 orthopedic evaluation of plaintiff, which revealed "severe lumbar scoliosis" of the back and spine, mild atrophy of the left thigh, and a half-inch shortening of the right leg due to scoliatic pelvic tilt; (2) a doctor's report of a December 29, 1980 peripheral vascular examination of plaintiff which revealed no peripheral arterial disease; (3) a case analysis prepared by a doctor employed by the Social Security Administration ("SSA"), dated May 1, 1981, which reviewed plaintiff's early medical history as well as the 1980 and 1981 reports enumerated above and concluded that plaintiff's activities "would be limited to light work activity that did not necessitate repetitive bending or stooping"; (4) a report of a September 14, 1981 consultive physical and x-ray examination of plaintiff in which the examining doctor diagnosed plaintiff's condition as "lumbrosacral myofascitis with underl[y]ing degenerative arthritis"; and (5) a radiology report of x-rays of plaintiff's spine taken September 14, 1981, which revealed "marked deformity of the lumbar spine", "that the spine is tilted to the right", and that "hemivertebrae are demonstrated at the level of L3-L4 and L5."

 Based on the above evidence and after "careful examination of the entire record", the ALJ rendered a decision which found plaintiff to be under a "continuous 'disability'" and which reads in part as follows:

 
The Administrative Law Judge has taken careful note of claimant's appearance and demeanor which suggested a person in great pain and to his testimony that he is restricted in his physical activites [sic] and to the many medical reports submitted on his behalf which clearly show a severe back problem (lumbar scoliosis), causing unrelenting pain. Hence, the Administrative Law Judge finds that upon consideration of the claimant's age, work history and limited education and that his [sic] is not now engaging in substantial gainful activity (work) and is unable to return to his past relevant work as a cab driver, that using the criteria as found in Rule 201.09, Table 1, Appendix 2, Subpart P, Regulations No. 4 claimant, at best, is limited to the performance of sedentary work and therefore is found to be disabled.

 The ALJ's decision was reversed on November 17, 1982 by the SSA Appeals Council on its own motion for review, and the Appeal's Council's decision became the final decision of the Secretary. The findings of the Appeals Council were that plaintiff does have a severe back impairment, but that his assertions as to the severity of his back pain "are not credible" and the medical evidence shows him capable of "light work", as that term is ...


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