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KEPPLER v. HECKLER

May 24, 1984

HOWARD J. KEPPLER, Plaintiff, against MARGARET M. HECKLER, Secretary of Health and Human Services, Defendant.


The opinion of the court was delivered by: WARD

WARD, District Judge.

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") denying plaintiff's application for disability insurance benefits. The Secretary held that plaintiff has failed to demonstrate that he suffered from a disability within the meaning of the Act. Plaintiff has moved for summary judgment pursuant to Rule 56(a), Fed. R. Civ. P. For the reasons hereinafter stated, plaintiff's motion is granted.

 BACKGROUND

 Plaintiff is currently forty-one years old. He has completed three years of college. From 1965 to 1980 he was employed as a police officer with the Yonkers Police Department. According to the administrative record, he has not worked since April 20, 1980, when he was injured in a motor vehicle accident.

 Plaintiff first applied for disability insurance benefits on December 29, 1980, alleging that he had been disabled since April 20, 1980 because of a lower back injury. After his application was denied initially and on reconsideration, he filed a timely request for an administrative hearing. Such a hearing was held on July 23, 1981 before Administrative Law Judge Frederick Harap (the "ALJ"). In a decision dated September 9, 1981, the ALJ found that plaintiff was not under a disability as defined by the Act, and that he was not entitled to benefits. Thereafter, the Appeals Council remanded the case to the ALJ for the taking of additional medical evidence. By decision dated November 10, 1982, the ALJ, without an additional hearing, again denied plaintiff's application. This determination became the final decision of the Secretary on March 28, 1983, when it was adopted by the Appeals Council.

 DISCUSSION

 The legal principles that govern the Court's decision on the instant motions are well settled. "Disability" is defined in the Act as an "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).

 The initial burden of proving disability is on the claimant. 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; Bastien v. Califano, supra, 572 F.2d at 912-13.

 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 Donato v. Secretary of HHS, 721 F.2d 414, 419 (2d Cir. 1983); Rivera v. Schweiker, 717 F.2d 719, 723 (2d Cir. 1983); 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 is 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 Aponte v. Secretary of HHS, 728 F.2d 588, 591 (2d Cir. 1984); Donato v. Secretary of HHS, supra, 721 F.2d at 418; Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam). Thus, absent legal error by the Secretary, her decision cannot be set aside if it is supported by substantial evidence. Bluvband v. Heckler, 730 F.2d 886, slip op. at 2466 (2d Cir. 1984); Dumas v. Schweiker, 712 F.2d 1545 (2d Cir. 1983); Aubeuf v. Schweiker, 649 F.2d 107, 112 (2d Cir. 1981); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). "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 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938)). See also Donato v. Secretary of HHS, supra, 721 F.2d 418; Parker v. Harris, 626 F.2d at 231-32.

 Applying these principles to the instant case, the Court concludes that the decision of the Secretary that plaintiff is not disabled is not supported by substantial evidence, and must be reversed. The medical evidence in the record flatly contradicts the Secretary's determination that plaintiff retained the residual functional capacity for "sedentary work." In fact, the uncontradicted consensus among all the examining physicians who reported on plaintiff's residual functional capacity is that plaintiff cannot meet the physical exertional requirements for even "sedentary work."

 In his decisions of both September 9, 1982 and November 9, 1981, the ALJ found that plaintiff "is unable to perform his past relevant work as a police officer." (Tr. 18, 33). This conclusion is overwhelmingly 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 establish 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 404.1567." (Tr. 18).

 However, in the instant case, there is simply no evidence to support the conclusion that plaintiff could engage in sedentary work. Rather, the unrefuted medical evidence was overwhelmingly to the contrary. The physical exertion requirements of jobs involving sedentary work are defined by the Secretary in accordance with the criteria set forth in the Dictionary of Occupational Titles published by the Department of Labor, see 20 C.F.R. § 404.1567. According to these criteria, a person must be able to sit for an extended period of time in order to be capable of performing sedentary work. As the courts have explained:

 The Dictionary of Occupational Titles, which is a generally accepted guide in gauging employment capability in these cases, states that sedentary work implies a capacity to sit ...


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