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VALENTI v. SECRETARY OF HHS

November 19, 1984

Andrew VALENTI, Plaintiff,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.



The opinion of the court was delivered by: MISHLER

Memorandum of Decision and Order

MISHLER, District Judge.

 Plaintiff brought this action pursuant to section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), seeking review of a final determination of the Secretary of Health and Human Services (the "Secretary"), denying plaintiff Social Security disability insurance benefits. Plaintiff applied for disability benefits on October 27, 1981. This application was denied initially and again on reconsideration. Plaintiff requested a hearing which was held on May 27, 1982.

 The Administrative Law Judge ("ALJ") considered the case de novo and on July 7, 1982 found that the plaintiff was not disabled. The ALJ's decision became final on March 14, 1983 when the Appeals Council affirmed it. Both parties now move for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c).

 FACTS

 Plaintiff was born on June 30, 1933 and has a 10th grade education. He has worked primarily as a truck loader and driver. Plaintiff alleges that he has been disabled since May 29, 1981 due to a lumbosacral sprain, a possible right wrist fracture, and a sprained left ankle with disabling pain. (Tr. p. 45).

 Plaintiff was injured on May 29, 1981 while loading his truck.He tripped on a hole in the floor and fell backwards breaking his fall with his left hand. (Tr. p. 32). The next day he went to the emergency room of John T. Mather Memorial Hospital which diagnosed his condition as a lumbosacral contustion and wrist sprain. (Tr. p. 83-85).

 Dr. James W. G. Murray, an orthopedic surgeon and plaintiff's treating physician, treated plaintiff from June 1, 1981 to April 20, 1982. (Tr. p. 103). On June 1, 1981, Dr. Murray reviewed the X-rays from Mather Memorial Hospital. He then X-rayed plaintiff's left ankle. On June 1, 1981 he diagnosed plaintiff's condition as back pain due to a severe lumbosacral sprain, swelling due to a torn left ankle ligament, and a limitation of flexion in the right wrist with pain and tenderness. (Tr. p. 103). He prescribed wrist and back braces. (Tr. p. 103-104). Dr. Murray referred plaintiff to Dr. Lawrence Hurst, a hand surgeon, for a consultation. Dr. Hurst saw plaintiff on March 1, 1982 and again on March 8, 1982. (Tr. p. 104).He took additional X-rays of plaintiff's wrist. Id. The X-rays indicated a severe ligamentous injury with evidence of arthritis. Id. The doctor recommended wrist fusion surgery, but recommended it be deferred due to plaintiff's excessive weight and hypertension. Id. Dr. Murray, plaintiff's treating physician, also referred plaintiff to Dr. Wani, a neurologist, who examined plaintiff on March 26, 1982. (Tr. p. 104). Dr. Wani confirmed Dr. Murray's diagnosis of claimant's back problem. Id. Dr. Murray saw plaintiff again on June 11, July 28, September 28 and October 26, 1981. Id. His report was prepared on April 20, 1982. He maintained that plaintiff would not be able to drive or load a truck and that he was "completely disabled at that time." (Tr. p. 104-105).

 Dr. Rodolpho Cane, a Social Security consulting physician, examined plaintiff on November 24, 1981. (Tr. p. 95). This report essentially concurred with Dr. Murray's diagnosis (i.e., a possible right wrist fracture, a lumbosacral sprain, and a sprained left ankle) except that he expressed no opinion as to whether plaintiff was disabled. (Tr. p. 96).

 The plaintiff's residual functional capacity evaluation was completed by Dr. Prusdorf, a Social Security reviewing physician. (Tr. p. 98). It indicated that plaintiff could walk, sit and stand for 3-6 hours, lift, push and pull 10-20 pounds and use his hands for fine and gross manipulations. Id. At the hearing held on May 27, 1982, plaintiff testified that he could sit for up to 20 minutes after which his back became stiff and sore. (Tr. p. 35). He indicated that although his ankle hurt while he stood, he only experienced slight pain when sitting. (Tr. p. 36). He also testified that his wrist hurt when he moved it and that, as a result, he had a weakened grip. (Tr. p. 37).

 The ALJ concluded that plaintiff had sustained his burden of proving his inability to return to his previous work as a truck driver and loader. Nevertheless, the ALJ held that plaintiff was not disabled under the Social Security Act because he was still capable of performing sedentary work. *fn1" (Tr. p. 15). However, the ALJ did not specify, with any particularity, the jobs which plaintiff could allegedly perform. The ALJ did take administrative notice of the existence of sedentary work in the national economy, but did not indicate the basis for such notice. In addition, the ALJ relied on the medical vocational guidelines (the "Grid") without the testimony of a vocational expert.

 DISCUSSION

 The issue in this case is whether the Secretary sustained her burden of proving that other work existed in the national economy which plaintiff could perform.

 "A person is "disabled" within the meaning of the [Social Security] Act . . . if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . can be expected to last for a continuous period of not less than 12 months . . ." 42 U.S.C. § 423(d)(1)(A)." Carroll v. Secretary of H.H.S., 705 F.2d 638, 641-42 (2d Cir.1983). The burden of proof is initially on plaintiff to show that he is unable to return to his previous work. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982) (per curiam); Aubeuf v. Schweiker, 649 F.2d 107, 112 (2d Cir.1981); Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1981). Once the plaintiff proves his inability to return to his previous work, the burden then shifts to the Secretary to show that there is other work existing in the national economy which plaintiff could ...


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