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March 16, 1984

JULIA GARCIA, Plaintiff, against MARGARET M. HECKLER, Secretary of Health and Human Services, Defendant.

The opinion of the court was delivered by: CONNER



 Claimant Julia Garcia ("Garcia") brought this action pursuant to § 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), for review of a final determination by the Secretary of Health and Human Services (the "Secretary") denying her claim for a period of disability and disability insurance benefits. The case is currently before the Court on cross-motions for judgment on the pleadings, Rule 12(c), F.R.Civ.P. Because the Secretary's determination is not supported by substantial evidence, this matter will be remanded to the Secretary for further proceedings in accordance with the directions set forth below.

 On June 25, 1980, Garcia filed an application for disability insurance benefits, based upon her lower back problems. See tr. at 76. Her application was denied initially on September 17, 1980, see tr. at 81, and upon reconsideration on November 6, 1980. See tr. at 84. Garcia then requested a hearing, which was originally scheduled for March 5, 1981 but was adjourned to allow her an opportunity to arrange for representation by legal counsel. On May 13, 1981, Administrative Law Judge Ralph A. Celentano (the "ALJ") conducted a hearing on Garcia's claim. In a decision dated October 28, 1981, following a de novo review of her claim, the ALJ found that Garcia was not entitled to a period of disability or disability insurance benefits. See tr. at 18-21. Garcia appealed that decision, and submitted additional medical evidence for consideration by the Appeals Council. On March 29, 1983, the Appeals Council refused to review the ALJ's decision, making it the final decision of the Secretary.


 At the hearing before the ALJ, Garcia testified through a translator that she came to the continental United States from Puerto Rico thirteen years ago. See tr. at 46. Although she had a high school education in Puerto Rico, she is unable to communicate in English. See tr. at 38, 46. She is married and has a twelve-year-old son. See tr. at 45-46. From the time Garcia came to the United States until she injured her back in 1976, she worked as a machine operator in a factory that made handbags and wallets. See tr. at 47-48. In that capacity, she was required to sit in front of a machine that glued parts of handbags to one another. See tr. at 48. Her tasks were repetitive; she would put the materials in place, activate the machine by pressing a button with her hand, and then, after the machine operation was finished, place the partially constructed bag to the side. See tr. at 48, 51. After she had accumulatted many partially completed pieces -- between 88 and 200 -- she would stand up and carry them to a large communal basket located on the floor of the factory. See tr. at 52-54. The piles of bags she had to carry to the basket sometimes weighed as much as 60 pounds. See tr. at 53-54. Garcia testified that all the other machine operators similarly accumulated many bags before they placed them in a basket, because it would be impossible to perform the job efficiently if an operator had to run back and forth to the basket after each pass of the machine. See tr. at 54.

 Garcia testified that she injured her back in September 1976, when she attempted to straighten up after placing a heavy load of bags in the basket. See tr. at 52, 55. She attempted to go back to work after her injury, but was able to work for only three months before she had to quit. See tr. at 55. She stated that she cannot sit or stand for an extended period of time because she suffers pain in the lower left side of her back, radiating down her left leg. See tr. at 54-55. According to Garcia, if she stands for more than 10-15 minutes at a time, or sits for longer than one-half hour, the pain becomes too severe.See tr. at 67-68. Although she takes medicine for her pain, she claims it provides only slight relief. See tr. at 59. She also stated that she is unable to walk for more than two blocks or to lift or carry anything. See tr. at 67-68.

 Claimant testified that she spends her average day alone at home while her son goes to school and her husband goes to work. See tr. at 59. She rarely goes out of her apartment except to visit the doctor, and when she does go out she is always accompanied by her husband. See tr. at 59-60. Her husband does all of the shopping and housework, most of the cooking, and assists her with her personal needs such as washing and dressing. See tr. at 59-60, 62-63.

 The medical evidence submitted by Garcia to the ALJ and the Appeals Council included a series of reports by Dr. Christopher Michelson, who has been treating Garcia for her back injury since 1977. His reports indicate that on July 31, 1978, Garcia was operated on at the Columbia Presbyterian Hospital for a herniated disc. She made a slow recovery, but was finally discharged on August 20, 1978, with a prescription for Percodan to relieve her pain. See tr. at 123. By the beginning of October, Dr. Michelson reported that her pain had diminished somewhat from its pre-operative level, and that she was wearing a corset. See tr. at 124.However, in an October 24, 1978 visit, Dr. Michelson observed that Garcia could not sit for more than 15-30 minutes or walk for more than 10-15 minutes without increased pain. See tr. at 129. By January 1979, Dr. Michelson observed that Garcia was walking well and had excellent strength in both lower extremities, although she was unable to bend forward or hyperextend because of pain. See tr. at 125.

 On May 26, 1979, Garcia was examined by Dr. Max Kliger, a consultant for the State Insurance Fund. Dr. Kliger found that her leg-raising ability and forward and lateral flexion were actively restricted, and concluded that she had a moderate partial disability. See tr. at 126. On March 10, 1980, claimant was examined by Dr. S. P. Lehv, another examining consultant for the State Insurance Fund, who concurred in the observations of and course of treatment ordered by Dr. Michelson. See tr. at 131-32. Dr. Lehv found that Garcia's lumbar curve was totally obliterated and that her paravertebral musculature was in spasm, demonstrating defensive splinting and paravertebral boarding. See tr. at 131. He also observed that she had no mobility in forward flexion. See id. On the basis of his examination and his review of the medical record, Dr. Lehv concluded that Garcia had a moderate partial disability. See tr. at 132.

 In connection with Garica's application for disability benefits, Dr. Michelson completed a residual functional capacity evaluation form on May 4, 1981, on which he noted that claimant can neither sit, stand, nor walk for more than one hour at any one time. See tr. at 139. Dr. Michelson further indicated that although Garcia has full use of her arms and hands and can occasionally lift or carry up to five pounds, she can never lift or carry more than that weight. See id. Finally, the doctor noted that Garcia is completely unable to bend or crawl, and can only occasionally squat, reach, or climb up one flight of stairs. See id. Also as part of her application for disability benefits, Garcia was examined on August 11, 1980 by Dr. Sidney Elpern, an examining consultant for the Secretary. Although Dr. Elpern indicated that Garcia's muscle volume and cranial nerves were normal, he found that her ability to bend laterally, anteriorly and posteriorly was restricted with the complaint of pain, and that she had diminished sensation along her entire left side. See tr. at 137. Dr. Elpern concluded that:

 [Garcia] complains of sciatic syndrome on the left, a laminectomy was done probably for a prolapsed disc, but has resulted in no improvement. She still complains of disabling pain. The only findings present are those due to a super imposed [sic] psychogenic factor.

 See id.

 On February 18, 1982, after the date of the ALJ's decision, Garcia was readmitted to Columbia Presbyterian Hospital for additional surgery on a further herniated disc. See tr. at 153. Her medical records, which were considered by the Appeals Council, reflect that on February 19, she underwent a spinal decompression and fusion performed by Dr. Michelson. See tr. at 154-157. She developed post-operative complications, and found ambulation very difficult. See tr. at 158. Upon her discharge from the hospital on March 27, 1982, she was unable to walk without assistance; therefore she required the services of a home attendant. See id. In a report following an examination on May 19, 1982, Dr. Michelson noted that although Garcia's walking was improved, she still required the services of a home attendant because she was unable to stand for more than five ...

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