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March 8, 1984


The opinion of the court was delivered by: WARD

This is an action under section 205(g) of the Social Security Act (the "Act") as amended, 42 U.S.C. § 405(g), for judicial review of a final decision by the Secretary of Health and Human Services (the "Secretary") *fn1" denying plaintiff's application for reinstatement of disability insurance benefits. The Secretary held that plaintiff had failed to demonstrate that he continued to suffer from a disability within the meaning of the Act. Both plaintiff and defendant move for judgment on the pleadings pursuant to Rule 12(c), Fed. R. Civ. P. For the reasons hereinafter stated, plaintiff's motion is granted insofar as it seeks a remand, defendant's cross-motion is denied and the case is remanded to the Secretary.


 Plaintiff, Salvatore Mazzella, currently thirty-two years old, was born in Florence, Italy and immigrated to the United States in 1966. He speaks and understands little English and has the equivalent of a fifth-grade education. Plaintiff is single and lives with his parents and a younger brother. Between 1968 and 1974, he worked as a warehouseman, unloading trucks in a glove factory, and as a house porter. He began suffering from thrombophlebitis of the left leg in the early 1970's, a condition which has required repeated hospitalization as well as surgery. He has not worked more than six weeks at a time since 1974 and has not worked at all since 1978. A period of disability was established for plaintiff beginning June 30, 1972 and he began receiving disability insurance benefits in 1974. Plaintiff's case was administratively reviewed in 1979 and it was determined that he had become able to do substantial gainful activity in October 1979. His entitlement to disability benefits was terminated two months later.

 After plaintiff's application for reconsideration of his benefits termination was denied, he filed a timely request for an administrative hearing, which was held on June 19, 1981. Plaintiff appeared pro se at this hearing. At the hearing plaintiff argued that his disability had not ceased and that he continued to experience pain, numbness, swelling, ulcerations and bleeding in his legs and feet. The Administrative Law Judge, Edward Steinman (the "ALJ"), found that plaintiff's disability had ceased in December 1979, and that plaintiff had not been under a disability since that time. On August 12, 1982, this finding became the final decision of the Secretary when it was adopted by the Appeals Council.


 The legal principles that govern the Court's decision on the instant motions are well settled. "Disability" is defined in the Act as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The mere presence of an impairment is not disabling within the meaning of the Act. Rather, a person may be determined to be under a disability only if his or her impairment is of such severity that the claimant is not only unable to do his or her previous work, but cannot engage in any kind of substantial gainful work that exists in the national economy. 42 U.S.C. § 423(d)(2)(A).

 A claimant seeking an original award of disability benefits bears the initial burden of proving disability. 42 U.S.C. § 423(d((5); see Schauer v. Schweiker, 675 F.2d 55 (2d cir. 1982); Carter v. Schweiker, 649 F.2d 937, 940 (2d Cir. 1981); Gold v. Secretary of HEW, 463 F.2d 38, 41 (2d Cir. 1972). The claimant satisfies this burden by making out a prima facie case, that is, by showing that his or her impairment prevents return to his or her prior employment. Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980); Bastien v. Califano, 572 F.2d 908, 912-13 (2d Cir. 1978). The burden then shifts to the Secretary, who must produce evidence to show the existence of alternative substantial gainful work that exists in the national economy that the claimant could perform. Parker v. Harris, supra, 626 F.2d at 231; Basten v. Califano, supra, 572 F.2d at 912-13.

 Although the instant case involves plaintiff's challenge to the termination of his disability benefits, the Court perceives no basis for altering this allocation of the burdens of proof. In this case, the Secretary has conceded that plaintiff could not return to his prior work as a warehouseman. Thus, plaintiff has satisfied his burden of establishing a prima facie case of continuing disability. Accordingly, the burden of proof in this case has shifted to the Secretary to demonstrate that there exists substantial gainful activity in the national economy that plaintiff could perform. *fn2"

 In reaching a conclusion as to disability, both objective and subjective factors are to be considered. These include objective medical facts, diagnoses or medical opinions based on such facts, subjective evidence of pain or disability testified to by the claimant or other witnesses, and the claimant's educational background, age, and work experience. Rivera v. Harris, 623 F.2d 212, 216 (2d Cir. 1980); Bastien v. Califano, supra, 572 F.2d at 912; Gold v. Secretary of HEW, supra, 463 F.2d at 41 n.2. These factors need not be given equal weight. The expert opinion of the claimant's treating physician is entitled to particular weight, and "in the absence of substantial contradictory evidence, the opinion of the claimant's treating physician is binding on the Secretary." Hankerson v. Harris, 636 F.2d 893, 896 (2d Cir. 1980); see Eiden v. Secretary of HEW, 616 F.2d 63, 64 (2d Cir. 1980); Alvarado v. Califano, 605 F.2d 34, 35 (2d Cir. 1979); Bastien v. Califano, supra, 572 F.2d at 912.

 The Secretary has the duty of making the determination of disability under the principles set out above. It is not the function of this Court, which sits in the present context as a reviewing court, to determine de novo whether the claimant remains disabled. Assuming the Secretary has applied proper legal principles, judicial review is limited to an assessment of whether the findings of fact are supported by substantial evidence. If they are so supported, they are conclusive.42 U.S.C. § 405(g). See Rivera v. Harris, supra, 623 F.2d at 216; Bastien v. Califano, supra, 572 F.2d at 912; Gold v. Secretary of HEW, supra, 463 F.2d at 41. "Substantial evidence" means "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 (1979) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938)). See generally Parker v. Harris, supra, 626 F.2d at 230-32.

 Applying these principles to the instant case, the Court concludes that the Secretary's decision that plaintiff can perform "sedentary work" is not supported by substantial evidence, and that the case must be remanded. The unrefuted medical evidence before the Secretary indicates that plaintiff can stand and walk for one hour during an eight-hour workday, and that he can sit for three hours if he elevates his left leg. He cannot lift or carry even five pounds. This evidence establishes that plaintiff cannot perform even "sedentary work."

 In his decision of August 19, 1981, the ALJ found that plaintiff "is unable to perform his past relevant work as warehouseman [sic]." (Tr. 19). This conclusion is amply supported by the evidence, and is not challenged by either party in this action. This finding shifted the burden of proof to the Secretary to show that plaintiff could perform some other form of substantial gainful activity. See supra at 3. In an effort to satisfy this burden, the Secretary offers the finding of the ALJ that plaintiff "has the residual functional capacity for at least sedentary work as defined in Regulation 404.1510 [sic]."

 However, in the instant case, plaintiff was unable to engage in sedentary work because he could neither lift the prescribed amount, nor sit for the ...

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