The opinion of the court was delivered by: SAND
LEONARD B. SAND, U.S.D.J.
This action is brought under section 205(g) of the Social Security Act, as amended (hereinafter "the Act") 42 U.S.C. § 405(g), to review a final determination of the Secretary of Health and Human Services, Margaret Heckler, (hereinafter "the Secretary"), which denied plaintiff's application for a period of disability and disability insurance benefits sought pursuant to sections 216(i) and 223 of the Act. 42 U.S.C. §§ 416(i), 423.
Plaintiff filed an application for disability insurance benefits on July 14, 1981 (Tr. 105-108). The application was denied initially (Tr. 109-110), and on reconsideration (Tr. 115-116). Plaintiff requested a hearing which was held on August 13, 1982 (Tr. 30-104). Administrative Law Judge Michael P. Friedman (hereinafter "ALJ") considered the case de novo and on September 30, 1982 found that while plaintiff is not able to perform his prior work as a police officer due to a physical impairment, he is able to perform sedentary work and is therefore not disabled within the meaning of the Act (Tr. 10-25). The ALJ's decision became the final decision of the Secretary when approved by the Appeals Council on June 23, 1983 (Tr. 3).
The only issue before this Court is whether the Secretary's determination that the plaintiff is not disabled is supported by substantial evidence. We find that it is not and therefore remand.
Plaintiff, Peter LaFace, is a male, 36 years of age at the time of the hearing (D.O.B. July 9, 1946-Tr. 105), with a high school education (Tr. 42) and past relevant work as a police officer (Tr. 42). Mr. LaFace alleges disability as of September 23, 1980 due to a back condition. Plaintiff testified that his back problems began with an injury suffered on the job in 1974, damaging his back and right hand. Subsequently the plaintiff reinjured his back in another job related accident in September of 1980.The plaintiff has not worked since that time. On December 31, 1981, the plaintiff was retired by the New York City Police Department on accident disability. The diagnosis of the Medical Board Police Pension Fund Article II was chronic lumbosacral sprain with radicular component. (Tr. 168-69). The three doctor medical board relied on the findings of three examining physicians: Dr. Peter Saadeh's report dated March 9, 1981 indicating possible right SI radicopathy; Dr. Rizzo's examination of October 16, 1980 finding radiculopathy on the right secondary to possible underlying disc at L4-5 and sacralization of L5; and Dr. Richard Raynor's neurosurgical consultation on March 16, 1981 which suggested radiculopathy without objective findings.
A. Statute and Regulations
Disabled persons are provided with benefits by the federal government under the Supplemental Security Income Program ("SSI") if they are unable 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).
An individual will be deemed disabled under the Act "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national econcomy." 42 U.S.C. § 423(d)(2)(A).
The Secretary has adopted by regulation a five step, sequential evaluation process to determine if individuals are eligible to receive or continue to receive benefits. The Second Circuit outlined the five steps in Berry v. Schweiker, 675 F.2d 464 (2d Cir. 1982).
Initially, if the person is presently engaged in a substantial gainful activity, he or she is disqualified from receiving benefits. 20 C.F.R. §§ 404.1520(a), 416.920(a). Mr. LaFace has been unemployed since September, 1980.
The Secretary nust then determine if the claimant suffers a severe impairment. 20 C.F.R. §§ 404.1520(e), 416.920(c). The Secretary does not allege that Mr. LaFace's impairment is not severe.
As to the third inquiry, however, the impairment does not come within those listed in Appendix 1 of the Regulation which are considered per se disabilities. 20 C.F.R. §§ 404.1520(d), 416.920(d). Since Mr. LaFace does not have a per se condition of disability, the Secretary must, under the fourth step, assess the individual's residual functional capacity (RFC) to see if he or she is capable of resuming prior employment. 20 C.F.R. § 404.1520(c), 416.920(c). The Secretary does not challenge Mr. LaFace's ...