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LANZISSERO v. HECKLER

February 27, 1984

LAWRENCE LANZISSERO, Plaintiff, against MARGARET M. HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.


The opinion of the court was delivered by: GLASSER

MEMORANDUM AND ORDER

GLASSER, United States District Judge:

 Plaintiff Lawrence Lanzissero brings this action pursuant to section 205(g) of the Social Security Act, as amended (the "Act"), 42 U.S.C. § 405(g), to review a final determination of the Secretary of Health and Human Services (hereinafter referred to as the "Secretary"), which terminated plaintiff's entitlement to disability insurance benefits ("SSI"). The government has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c).

 Plaintiff received SSI benefits for a period of disability commencing May 11, 1979. The Secretary initially determined that plaintiff's disability ceased in June 1981. This decision was affirmed on reconsideration. A hearing before an Administrative Law Judge ("ALJ") was held on June 25, 1982. The ALJ determined that plaintiff's disability ceased as of August 1981 and that plaintiff was capable of performing sedentary work as an electrical assembler. The Appeals Council affirmed the decision of the ALJ, but determined that plaintiff's disability ceased in June 1981. The decision of the ALJ became the final decision of the Secretary when it was affirmed, as modified, by the Appeals Council on December 22, 1982.

 The only issue presented to this Court is whether the Secretary's decision that plaintiff's disability ceased is supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971). For the reasons discussed below, the defendant's motion is denied. This action is remanded to the Secretary for a reevaluation of the evidence submitted.

 Facts

 Plaintiff is a 54 year old Marine Corps veteran with an eleventh grade education. He previously worked as an elevator repairman from 1953 through May 1979, when he was injured in a work-related accident. Plaintiff complains of frequent pain in his right knee and leg and stiffness and some pain in his left ankle. He testified that he has frequent leg cramps, Tr. 38, and that he takes medication which appears to provide only temporary relief from pain. Id. Plaintiff states that he has pain in his legs when sitting or walking, and that he falls down frequently when his right knee gives way.Plaintiff broke five ribs in August 1979 when he fell due to instability in his legs, Tr. 119-27, and testified that just prior to his hearing before the ALJ, he bruised his ribs in this same manner. Plaintiff uses a cane when he stands and sits to relieve pressure on his right leg, Tr. 39, and testified that he drives only rarely because of the pressure exerted on his right ankle. Tr. 39-40. Plaintiff uses a brace on his right knee. He testified that he is supposed to do knee-raising exercises to strengthen his right leg and that he does these exercises "on occasion." Tr. 40.

 Plaintiff further testified that he can walk for about one block before he has to sit for twenty to sixty minutes to relieve the pain. Tr. 42-43. Plaintiff's wife does most of the housework, although he helps her with the dishes and takes out the garbage. Tr. 38, 43. He stated that he cannot use public transportation because he cannot manage the steps. He testified that his social activity is limited, in that he does not go to the movies or church or do lawn work at least in part due to the pain in his legs. Tr. 44.

 Plaintiff, who was represented by counsel before the ALJ and this Court, offered several medical reports in support of his claim of disability. Dr. Dunbar, a treating physician, reported that plaintiff suffered from an unstable right knee and had a healed fracture of the left ankle. He stated that plaintiff would probably require further knee surgery, that plaintiff could not return to his former job, and that plaintiff could not crouch and could not stand or walk for a prolonged period of time. Tr. 151-65. He suggested that plaintiff receive vocational rehabilitation and advised that plaintiff be retrained for some type of sedentary work. Tr. 152. Dr. Dunbar did not otherwise discuss plaintiff's residual functional capacity.

 Dr. Maurillo, another treating physician, reported in a brief note that plaintiff has total instability of the right knee and is "permanently totally disabled for all forms of employment." Tr. 191. In a report submitted subsequent to the hearing before the ALJ, Dr. Maurillo diagnosed plaintiff as having an unstable right knee and synovitis left ankle. Dr. Maurillo recommended reconstructive surgery for the right knee and requested authorization from the compensation carrier for such surgery. Tr. 193. His report reiterated his opinion that plaintiff was unable to work. In his decision, however, the ALJ apparently overlooked the report of clinical findings of Dr. Maurillo submitted after the hearing. The ALJ's decision concluded that Dr. Maurillo's opinion was "unsupported by specific and complete clinical findings and is controverted by substantial medical evidence" and "is not dispositive of claimant's continuing disability." Tr. 16.Although the ALJ overlooked the clinical findings submitted by Dr. Maurillo, Dr. Maurillo's report is the only report in the record which states affirmatively that plaintiff is unable to work.

 Dr. Fiks, a consulting psychiatrist, reported that plaintiff has adjustment reaction of adult life with depression. He stated that plaintiff has a limited concentration span and that plaintiff's claims (anger, moodiness, depression, limited concentration span) are consistent with his difficulties, Tr. 167, and rated plaintiff's mental residual functional capacity to be mildly to moderately impaired.

 Dr. Sarwal, a consulting surgeon, reported that plaintiff has ankylosis of the right knee with degenerative arthritis. Tr. 146. He noted atrophy of the muscles in both of plaintiff's legs and that right knee flexion was possible only up to forty-five degrees. Dr. Sarwal stated that plaintiff could sit two hours, stand one hour, and walk one-half hour. He further reported that plaintiff could lift up to fifty pounds, carry up to twenty pounds and bend. In Dr. Sarwal's opinion, plaintiff cannot squat. Grasping and fine manual manipulation were within normal limits and pushing and pulling were limited by thirty percent. A residual functional capacity chart recites Dr. Sarwal's findings. Tr. 148.

 I note at this point that the ALJ improperly interpreted Dr. Sarwal's report. As stated above and at page 146 of the transcript, Dr. Sarwal stated that plaintiff could sit for two hours daily. In his decision, however, the ALJ stated that Dr. Sarwal reported that plaintiff could sit two to four hours per day. Tr. 15. The ALJ apparently misread Dr. Sarwal's RFC evaluation, Tr. 148, where the doctor crossed out four hours where plaintiff's residual functional capacity to sit is indicated. A reading of Dr. Sarwal's written report would confirm this evaluation. Tr. 146. Neither interpretation of Dr. Sarwal's report regarding plaintiff's capacity to sit, however, establishes that plaintiff is able to perform sedentary work. *fn1"

 Dr. Scott, another consulting physician, diagnosed that plaintiff suffered from instability of the anterior and posterior cruciate ligament and capsular segments of the right knee, with limited motion in the right knee. Tr. 173. He stated that plaintiff has a "moderate partial disability and it is felt that the patient is unable to perform functions which would incorporate long standing[,] walking or acute knee flexion. It is felt that the patient could perform other sedentary duties, which did not involve these physical ...


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