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SCANLON v. HECKLER

April 18, 1984

JOHN J. SCANLON, Plaintiff, against MARGARET M. HECKLER, Secretary, Department of Health and Human Services, Defendant.


The opinion of the court was delivered by: KRAM

MEMORANDUM OPINION AND ORDER

SHIRLEY WOHL KRAM, U.S.D.J.

 Claimant John Scanlon ("Scanlon") brought this action pursuant to § 205(g) of the Social Security Act, as amended (the "Act"), 42 U.S.C. § 405(g), for review of a final determination by the Secretary of Health and Human Services (the "Secretary"), which denied his claim for a period of disability and disability insurance benefits. The case is currently before this Court upon cross-motions for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons stated more fully below, the Secretary's determination is not supported by substantial evidence and is based upon an apparent failure to apply proper legal principles; therefore, this matter will be remanded to the Secretary for further proceedings in accordance with the directions set forth below.

 BACKGROUND

 On June 24, 1981, Scanlon, a former New York City Police Officer, filed an application for disability insurance benefits, based on lower back problems, including a herniated disc with arthritis (Tr. 50-53).* His application was denied initially on October 2, 1981 (Tr. 54-58), because, although he could not return to his prior work, he could perform sedentary work available in the national economy. Scanlon sought reconsideration of this determination, and on January 13, 1982, his application was again denied because he could perform sedentary work available in the area where he resides (Tr. 65). Scanlon then requested a hearing. On May 4, 1982, Administrative Law Judge Irwin N. Portnoy (the "ALJ") conducted a hearing on plaintiff's claim (Tr. 22-49). Following a de novo review of Scanlon's claim, the ALJ found that Scanlon was not entitled to a period of disability or disability insurance benefits by decision dated June 10, 1982 (Tr. 12-16). Scanlon appealed that decision, and submitted an additional medical report from a Dr. Orfeo Brucato for consideration by the Appeals Council (Tr. 8-11, 146-48). On September 23, 1982, the Appeals Council refused to review the ALJ's decision, making it the final decision of the Secretary (Tr. 4-5).

 Scanlon testified that he was born in the United States on September 4, 1945 (Tr. 27). He has a high school education (Tr. 31). After high school, Scanlon worked at First National City Bank -- first as a messenger and then as a teller (Tr. 36). After five years at the bank, Scanlon became a New York City Police Officer. He was employed as a police officer for just over ten years before he retired on partial disability on August 1, 1979 (Tr. 32). His duties while a police officer required Scanlon to patrol -- walk or stand -- for approximately six hours and sit for an additional two (Tr. 32-34). During the course of his work, Scanlon would occasionally be required to help lift things, including victims, ranging up to 75 to 150 pounds (Tr. 34).

 Scanlon testified that his injury is a work related injury (Tr. 32), and that his injury was exacerbated by a fall he took in May, 1981 (Tr. 39). Scanlon, who walks with a cane, stated that he cannot sit or stand for an extended period of time because he suffers pain in his lower back and left thigh (Tr. 40-41). During the hearing, Scanlon stood and sat, alternately, for about fifteen minutes at a time each, claiming that he did so because of discomfort (Tr. 15, 24, 32, 37, 45). The only position that he is comfortable in is laying down (Tr. 41). He also testified that he has no feeling in his left toes (Tr. 40). Scanlon takes medication for his pain, but he claims that it provides only slight relief, dulling the pain but not eliminating it (Tr. 40), while also making him tired (Tr. 46-47).

 Scanlon testified that he has difficulty sleeping because of the pain he is in (Tr. 46-47). He also claimed that his pain prevented him from doing the exercises, squatting and touching his knees to his chest, that had been prescribed for him (Tr. 44).

 Scanlon testified that he is separated from his wife. The separation was caused by his impotence which is a result of the pain he suffers (Tr. 28-29). He does not live at his home with his wife. He is living with an undercover narcotics agent (a former partner of his on the police force) and his ex-partner's wife (Tr. 30). He testified that he spends an average day at this home reading or watching television (Tr. 41-42). He spends some time talking with his ex-partner and wife, but tries not to interfere with their lives too much (Tr. 42, 45-46). Occasionally, Scanlon has visitors at this house (Tr. 44-45). He rarely leaves this house. He stated that he occasionally walks about a block to get a paper, or to go to the park down the block (Tr. 43, 45), but that he walks no further. He tried to go to a drive-in movie with his ex-partner once, but could not sit long enough (Tr. 43). His ex-partner occasionally takes him for a short ride in the car, but Scanlon testified that he is very uncomfortable in the car (Tr. 43). His own drivers' license has lapsed (Tr.31). Scanlon's ex-partner and wife do all the housework and cooking (Tr. 42, 44).

 Scanlon appeared at the hearing with a cast on his right foot and ankle. He testified that he had fractured his ankle when his leg gave way (Tr. 37-38). Hospital records indicate that x-rays were taken, which revealed a dislocation, and that a diagnosis of ankle sprain was given (Tr. 147-48).

 The other medical evidence submitted by Scanlon to the ALJ and the Appeals Council included two reports by Dr. John Nailor, who has been treating Scanlon for his back injury since June 1, 1981. Dr. Nailor's first report (Tr. 90-93), dated July 20, 1981, indicated clinical findings of a 20% loss of flexion in the lumbosacral spine and no extension. His residual functional capacity assessment indicated that Scanlon could sit, stand, and walk for two hours each during an eight hour work day; could occasionally lift or carry up to ten pounds, but never any more than ten pounds; could bend occasionally, but never squat, crawl, or climb; and that Scanlon could use both hands to grasp, push or pull, and perform fine manipulations. Dr. Nailor noted no other limitations at that time.

 Dr. Nailor's second report (Tr. 107-11), dated April 5, 1982, indicates a deterioration in Scanlon's condition, although it does note that there is "no change in status." The clinical findings included 30 degrees forward flexion, spasms of the lumbosacral musculature, limited straight leg raising of the left leg, and decreased sensation. The diagnosis was herniated nucleus pulposus with degenerative changes. On a different form from that filled in on July 20, 1981, Dr. Nailor indicated the following physical capacities evaluation, or residual functional capacity assessment: Scanlon could not stand, sit, or walk at all in an eight hour work day; could occasionally lift or carry up to ten pounds, but never any more than ten pounds; could use his right foot for repetitive movements, but not his left foot; could not bend, squat, crawl, or climb at all; and that Scanlon was totally restricted from activities involving unprotected heights, moving machinery, and driving automotive equipment, but only mildly restricted from those involving marked changes in temperature and humidity. Dr. Nailor concluded that Scanlon was "permanently disabled" at that time.

 As part of his application for disability benefits, Scanlon was examined, on September 11, 1981, by Dr. A. Gourji at the request of the disability determination service. In his report (Tr. 96-103), Dr. Gourgi found that Scanlon could not descend to a squatting position from a standing position because of severe pain in his back. Dr. Gourji further found that forward flexion at the waist was up to 35 deg.; lateral bending up to 5 deg. bilaterally; and posterior extension up to 5 deg. with moderate to severe pain. Scanlon was unable to stand on his toes and heels. On examination of Scanlon in the sitting position, Dr. Gourji found that knee extension caused complaints of pain in the left leg and back. Deep tendon reflexes wee normal bilaterally. On examination of Scanlon in the supine position, Dr. Gourji found that hip flexion and rotation on the left was unrestricted, but caused severe pain. Straight leg raising on the left was up to 45-50 deg., but brought severe pain in the back; on the right, up to 65 deg. with moderate pain in the back. Dr. Gourji concluded that Scanlon was suffering "moderate to severe chronic low back pain syndrome with consistent evidence for [sic] a clinical impairment." In his residual functional capacity assessment, using the same form as Dr. Nailor's first report, Dr. Gourji found that Scanlon could sit for two hours during an eight hour work day, but could not stand or walk at all; could occasionally lift or carry up to ten pounds, but never any more than ten pounds; could not bend, squat, crawl, or climb at all; and that Scanlon could use both hands to grasp, push or pull, and perform fine manipulations.

 Scanlon was again examined by a doctor at the request of the disability determination service, this time by Dr. R. Bagner of the Mo-Vern Medical Group, on December 15, 1981. In his report (Tr. 104-106), Dr. Bagner noted that Scanlon walked without a limp or deformity, but that he walked with, and appeared dependent upon, a cane. In a brief discussion of his findings with respect to Scanlon's back, Dr. Bagner noted no spasm of the paraspinal muscles; localized tenderness in the areas of TT4-T5 and T5-S1; and no atrophy to the gluteal, thigh, or calf muscles. Dr. Bagner found no pain on straight leg raising of the right leg, but found pain at 30 deg. on raising of the left leg. Dr. Bagner also found that flexion was limited to 20 deg., extension of the back to 10 deg., and lateral ...


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