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SPENA v. HECKLER

May 16, 1984

GABRIELE SPENA, Plaintiff, against MARGARET M. HECKLER, SECRETARY, DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.


The opinion of the court was delivered by: SAND

LEONARD B. SAND, U.S.D.J.

SAND, J.

 Gabriele Spena brings this action to review a final determination of the Secretary of Health and Human Services ("the Secretary") that plaintiff is not disabled for purposes of the Social Security Act ("the Act") and therefore not entitled to disability insurance benefits and Supplemental Security Income. Defendant has moved for judgment on the pleadings under Fed.R.Civ.P. 12(c). For the following reasons, we deny defendant's motion and remand the case to the Secretary.

 FACTS

 Gabriele Spena is 48 years old. He was born in Italy in 1936 where he completed four years of schooling before coming to the United States in 1962. He has had no schooling in the United States and is unable to communicate in English. An interpreter was used at the administrative hearing.

 Plaintiff was trained in Italy as a mechanic's helper in an iron works and continued performing this work after arriving in the United States. On December 28, 1979, while at work, plaintiff slipped and fell off iron pipes lying on the floor and injured his lower back. He has not worked since that date. At his hearing, plaintiff testified that he experiences constant pain in his lower back and left leg as a result of this accident, visits a doctor monthly, takes medication and walks with a cane.

 Plaintiff was examined by Dr. Anthony N. Soscia on behalf of the Workmen's Compensation Board on January 15, 1980 and February 1, 1980. Dr. Soscia's diagnosis was lumbar sacral sprain with moderate muscle spasm and restricted spine motion. Although Dr. Soscia's initial report states that the duration of the disability would probably be three to four weeks, the second report does not mention any such limit to plaintiff's disability.

 Plaintiff was examined by Dr. Robert Zaretsky on July 24, 1980, and according to plaintiff's testimony and Dr. Zaretsky's reports, plaintiff has been treated by Dr. Zaretsky on a monthly basis since that date. Dr. Zaretsky noted a moderate degree of paravertebral muscular tautness with local tenderness, flexion of 55 deg., lateral bend of 20 deg., and no atrophy. In the final report, dated October 13, 1982, Dr. Zaretsky noted persistent muscle spasm, defects in trunk mobility, straight leg raising positive on the left side, and lateral bend reduced to 15 deg. Dr. Zaretsky stated that plaintiff is not capable of gainful employment.

 Plaintiff was examined by another Workmen's Compensation Board doctor, Dr. deNarvaez, on June 24, 1981 and April 27, 1982. On both occasions, Dr. deNarvaez reported that forward flexion of the trunk as well as sitting and supine straight leg raising are restricted and elicit pain in the lower back. Dr. deNarvaez's final diagnosis was permanent partial disability.

 Plaintiff was also examined by Dr. M. Patel, a consulting physician to the disability determination service, on June 11, 1982. Dr. Patel's diagnosis was scoliosis of the spine and chronic low back syndrome with status post trauma. On November 6, 1982, Dr. Kovary, a non-examining physician of the disability determination service, completed a residual functional capacity assessment of plaintiff. Dr. Kovary found that plaintiff could lift twenty pounds and frequently lift up to ten pounds. Dr. Kovary made no evaluation of plaintiff's ability to sit, stand, walk or complete push/pull activities but he concluded that plaintiff could perform light work.

 Plaintiff testified that he has trouble standing for very long, can walk 1-1/2 blocks without a rest, and can sit for twenty minutes.

 Plaintiff filed his application for disability insurance benefits on May 4, 1982, claiming a disability onset date of July 1981 which was later amended to December 28, 1979. Plaintiff's application was denied and a hearing was held before an ALJ on February 22, 1983. The ALJ ruled that plaintiff has a severe impairment and cannot perform his past relevant work as a mechanic's helper. The ALJ concluded, however, that plaintiff has the residual functional capacity to perform light work and thus, by applying Table No. 2 of Appendix 2 of the Regulations promulgated pursuant to the Act, is not to be considered disabled. Plaintiff appealed and on June 3, 1983 the Appeals Council affirmed the decision of the ALJ.

 Discussion

 In these proceedings, our function is limited to a review of the legal standards applied by the Secretary and a determination of whether the Secretary's findings of fact are supported by substantial evidence. Rivera v. Harris, 623 F.2d 212, 216 (2d Cir. 1980); Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978). To determine whether there is substantial evidence to support the Secretary's findings, we must consider both evidence that supports and evidence that detracts from the Secretary's decision. The Secretary's findings will be sustained if supported by substantial factual evidence, despite the presence of substantial evidence to support plaintiff's position, and despite the fact that this Court's own independent analysis of the evidence might differ from the Secretary's. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212, 103 S. Ct. 1207, 75 L. Ed. 2d 447 (1983); Reading v. Mathews, 542 F.2d 993, 997 (7th Cir. 1976). However, although we must give substantial deference to the Secretary's evidentiary findings, no such ...


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