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BARRETT v. SECRETARY OF THE DEPT. OF HEALTH

February 28, 1984

BASIL BARRETT, Plaintiff, against SECRETARY OF THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE OF THE UNITED STATES, Defendant.


The opinion of the court was delivered by: SOFAER

MEMORANDUM OPINION AND ORDER

ABRAHAM D. SOFAER, D.J.:

 This is an action brought under Section 205(g) of the Social Security Act (Act), as amended 42 U.S.C. § 405(g), to review a final determination of the Secretary of Health and Human Services (Secretary) which found that plaintiff's disability had ceased as of September 1977. The parties have crossmoved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

 Plaintiff, now fifty-three years old, completed the first year of high school and worked in construction as a roofer and waterproofer for twenty-five years, from 1949 until 1974. His career in construction ended on November 21, 1974, when he suffered a back injury after falling down a flight of stairs while at work. Medical reports from physicians who treated or examined plaintiff during the period immediately following his fall indicated that plaintiff suffered from a combination of back impairments, including acute lumbrosacral sprain, coccyygitis, scoliosis of the lumbrosacral region, chronic sciatica, osteoarthritis, and probable herniated disc.

 Plaintiff filed an application for disability benefits on July 9, 1975. The application was denied initially, but granted upon reconsideration. Plaintiff continued to receive disability benefits until the Social Security Administration determined, after a routine review, that plaintiff, who was then forty-seven years old, was capable of performing substantial gainful work as of September 1977, and notified him that he was not entitled to received benefits after November 1977. At plaintiff's request, a hearing was held before Administrative Law Judge (ALJ) Harap on August 1, 1978, who made a de novo determination that plaintiffs' disability had ceased as of September 1977. Plaintiff testified to pain in his lower back and numbness in his left leg with a resulting inability to tolerate prolonged sitting, standing, walking and lifting. Dr. Seslowe, plaintiff's treating physician at the time, found in his report dated October 22, 1975, that plaintiff suffered from chronic lumbosacral strain, and chronic sciatica with L-5 radiculopathy. Dr. Seslowe did not make specific findings as to claimant's residual functional capacities, but concluded in a later report that as of May 17, 1977 plaintiff was still "totally disabled." Tr. 113)

 Additional medical evidence came from a consulting physician, Dr. Quattromani, who found that as of September 23, 1977 plaintiff suffered from scioliosis of the dorsal and lumbar spine, and osteoarthritis with discogenic pathology at C3-C4, C4-C5, C5-C6 and C6-C7. On the basis of these findings and a further assessment of cliamant's functional capabilities, however, Dr. Quattromani concluded that plaintiff had only "a partial temporary disability and he can be rehabilitated." (Tr. 115) Contrary to plaintiff's testimony and to every other physician who has examined or treated plaintiff, Dr. Quattromani was of the opinion that plaintiff could walk three to four miles.

 Plaintiff's treating physicians recommended a myelogram test and then if needed surgery, but the plaintiff refused this course of treatment because there was no guarantee of success and he feared the risks of surgery. Plaintiff currently wears a back brace which affords some relief, but his treating physicians uniformly agree that he has obtained maximum benefit from conservative treatment. ALJ Haraph was of the opinon that, although plaintiff's impairments precluded him from returning to his prior physicially strenous work, they were not of a level of severity that precluded sedentary work. ALJ Harap also found that plaintiff's refusal to undergo surgery "recommended" by treating physicians was unreasonable and constituted willful failure to follow prescribed treatment. (Tr. 8) This decision was affirmed in November 1978 by the Social Security Administration Appeals Council.

 On appeal, this court remanded the case for further administrative proceedings because of (1) the heavy reliance of the ALJ on the report of the consulting physician, Dr. Quattronmani, in light of the inconsistencies in that report; (2) the failure of the ALJ to adequately consider the evidence as submitted by plaintiff's treating physicians; (3) the failure of the ALJ to specify the availabilty of alternative employment which the plaintiff could perform. In addition, in the event the ALJ to whom the case was assigned on remand should conclude that the plaintiff has been disabled as of September 1977, the remand ordered that the ALJ determine whether claimant's refusal to undergo a myelogram and/or spinal surgery under the circumstances of this case constituted a willful refusal of prescribed treatment within the meaning of 20 C.F.R. § 404.1518 (1980) (repealed prospectively in April 1983).

 The case was assigned on remand to ALJ Ross who conducted a hearing on August 27, 1980. The ALJ issued a recommended decision on November 7, 1980 favorable to the plaintiff, in which he found that plaintiff's back condition remained severe, which precluded him from performing any substantial gainful activity. The ALJ found that the plaintiff suffered from chronic lumbrosacral discogenic disease with chronic sciatica and L-5 radiculopathy, scoliosis of the lumbosacral spine, concave to the right. Further, ALJ Ross stated, "[a]lthough there is some evidence in the file from a consultative physician which indicates that the claimant's disability is "temporary" and that he may be able to engage in sedentary work, this conclusion goes against the numerous opinions of the other physicians of record." (Tr. 134)

 On February 17, 1981 the Appeals Council found that ALJ Ross had used incorrect legal standards to determine that plaintiff's disability had not ceased when he (1) placed the burden of showing improvement in claimant's medical condition on the government, and (2) gave greater weight than the Council felt proper to the treating physicians' reports. Consequently the Appeals Council remanded the case to ALJ Ross to reevaluate the evidence and to issue a second recommended decision based upon the standards outlined in its order. This second remand order was vacated by the Appeals Council after eight months due to ALJ Ross' failure to hold new proceedings. Without the benefit of a further recommended decision by the ALJ, the Appeals Council issued a final determination that plaintiff's disability had ceased by September 1977.

 This Court's remand of this case was ordered in part because a reading of the record demonstrated that the original ALJ had failed to give proper consideration to the medical reports of plaintiff's treating physicians. The remand order did not suggest that an ALJ could not reasonably have concluded either that plaintiff was no longer disabled as of September 1977 or that he continued to be disabled. The objective medical evidence can in fact be read to support either a finding of total disability or a finding that the claimant is capable of performing light or at least sedentary work. "Sedentary work" is defined in the Regulation as:

 Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.

 20 CFR § 404.1567(a). Dr. Seslowe, one of the claimant's treating physicians, concluded that claimant was still totally disabled as of May 13, 1977 on the basis of his examinations and diagnosis. Dr. Sheth, also a consulting physician, made a report on June 10, 1976 with diagnostic findings similar to Dr. Seslowe's, except that Dr. Sheth concluded claimant was capable of walking three to four blocks, standing one hour at a time, lifting five to six pounds and sitting approximately one hour at a time. In addition, he found that plaintiff could grasp and manipulate normally. Dr. Sheth concluded that claimant "may only be able to do what is a very light desk-type of clerical work," (Tr. 109), an opinion appropriately qualified since sedentary work may require lifting up to ten pounds at a time.

 In contrast, both Dr. Quattromani's report of September 23, 1977, and Dr. Biscaro's report (another treating physician) of July 26, 1978, contain findings consistent with a functional capacity for light ...


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