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MAISCH v. HECKLER

March 25, 1985

JOHN MAISCH, Plaintiff, against MARGARET M. HECKLER, Secretary of Health and Human Services, Defendant


The opinion of the court was delivered by: SWEET

SWEET, D.J.

This is an action brought by plaintiff John Maisch ("Maisch") under section 205(g) of the Social Security Act, as amended (the "Act"), 42 U.S.C. § 405(g), to review a final determination of the Secretary of Health and Human Services (the "Secretary"), which denied Maisch's application for federal disability insurance benefits. Maisch has now moved pursuant to Fed.R.Civ.P. 12(c) for judgment on the pleadings. The Secretary has cross-moved for an order pursuant to Rule 12(c) affirming the decision. For the following reasons, the decision of the Secretary is reversed, and the case is remanded to the Secretary for further proceedings consistent with this opinion.

 Prior Proceedings

 Maisch filed an application for Social Security Disability benefits ("Disability Benefits") on February 11, 1980, alleging that he had been disabled since May 7, 1979 due to back injuries he sustained while performing his job. His application was denied initially and on reconsideration, and Maisch subsequently requested a hearing to review his application. The hearing was held on July 8, 1980. Maisch appeared before Administrative Law Judge Jerome Feiner ("Feiner"), who considered the case de novo. On October 31, 1980, the Administrative Law Judge ("ALJ") found that Maisch was not under a disability, and the Appeals Council affirmed that determination. Maisch sought review of the Secretary's decision by commencing an action on March 9, 1981, filed under Docket No. 81 Civ. 1347 (MP). By order dated September 25, 1981, the Honorable Milton J. Pollack, United States District Judge for the Southern District of New York, remanded the case to the Secretary for further consideration under 20 C.F.R. App. II sub-part P. because he found that the ALJ did not comply with the standard set out in Gold v. Secretary of HEW, 463 F.2d 38 (2d Cir. 1972). Pursuant to the court's order, a new hearing was held on March 18, 1983 before ALJ Feiner, who considered the case de novo. Maisch was represented by counsel. On June 30, 1983, the ALJ found that Maisch was disabled due to a mental impairment as of March 2, 1982 but not prior thereto. On December 29, 1983 the Appeals Council adopted the decision of the ALJ which then became the final decision of the Secretary. Maisch commenced the instant action on April 20, 1984 to review the final decision of the Secretary.

 The Record Below

 Maisch was born on September 21, 1934 and at the time of the second hearing was 48 years of age. He completed most of high school and worked as a rigger and crane foreman for a utilities company for over 28 years. On May 7, 1979, Maisch suffered an occupational injury after falling down a flight of stairs, sustaining a low back injury and fracturing ribs. On the date of his injury Maisch was examimed by Dr. Francesco Cavallo ("Dr. Cavallo"), a general practitioner. Dr. Cavallo treated Maisch weekly through at least July 1980. In a report dated May 21, 1980 Dr. Cavallo stated that examination of that date revealed that Maisch had tenderness of the cervical, thoracic and lumbar spine as well as left shoulder and wrist. He had limited flexion of the lumbar spine and walked with an antalgic gait. Diagnosis was chostochondral detachment of the right ribs with thoracic spine sprain and lumbosacral derangement. Dr. Cavallo assessed Maisch's residual functional capacity and determined that in an eight hour work day Maisch could sit, stand and walk for one hour each, occasionally lift and carry up to ten pounds and could not use his left hand for repetitive action. In a subsequent report dated July 2, 1980 Dr. Cavallo found that Maisch was totally and permanently disabled with a diagnosis of low back derangement with discogenic disease of L5-S1.

 Approximately two weeks after his accident, on May 20, 1979 Maisch was treated at the emergency room in Huntington Hospital complaining of pain in his rib cage and upper back. It was felt that Maisch had a possible fracture in the eleventh rib on the right side. He was discharged with pain medication and told to visit his physician.

 The record contains a report dated July 24, 1979 from Dr. Anthony Puglisi ("Dr. Puglisi"), a board certified orthopedic surgeon. His examination revealed limitation of range of motion of the lumbosacral spine. Straight leg raising was positive at 60 degrees bilaterally but deep tendon reflexes were normal. X-rays of the lumbosacral spine revealed some narrowing of the L5-S1 interspace as well as traction spurs and other degenerative changes of the lower lumbar spine. Dr. Puglisi diagnosed low back derangement and felt that Maisch would benefit from a course of bedrest, pelvic traction and medication. He felt that Maisch was temporarily disabled.

 On February 25, 1980 Dr. Saverio Franco ("Dr. Franco"), a board certified internist, reported the results of seven examinations of Maisch. He felt that Maisch had a diagnosis of low back derangement. Examination of January 10, 1980 revealed Maisch's back was straight. He was able to flex to 75 degrees with no spasms. Deep tendon reflexes were normal and straight leg raising was negative. Dr. Franco stated that Maisch's absence from work was considered indefinite.

 Maisch was examined on seven occasions by Dr. William Jaffe ("Dr. Jaffe"), a board certified orthopedic surgeon. Dr. Jaffee's report of July 1, 1980 referred to a prior report after his first examination of September 28, 1979. In this report while finding some positive physical findings. Dr. Jaffee stated that he did not feel Maisch would be permanently or seriously disabled. He also stated that if Maisch's symptoms diminished he would suggest he return to light duty. Dr. Jaffee did, in fact, recommend light duty for Maisch after his examination of December 11, 1979 and again after his examination of January 8, 1980.

 In order to obtain a more definite assessment of Maisch's orthopedic impairment, several consultative examinations were requested. On August 25, 1980 Maisch was examined by Dr. Richard Goodman ("Dr. Goodman"), a board certified orthopedic surgeon. Physical examination revealed some limitation of range of motion of the lumbar spine. Knee and ankle reflexes were three plus and equal bilaterally. Neurological examination was within normal limits. In the sitting position straight leg raising was negative to 90 degrees bilaterally. When lying down straight leg raising was limited to 20 degrees but with a negative Lasegue sign. X-rays of the lumbosacral spine revealed moderate narrowing of the L5 interspace with slight degenerative changes of the lumbosacral spine and slight spondylosis of the lumbar spine. It was the opinion of Dr. Goodman that while Maisch had some loss of motion of the lumbar spine this was partially due to spondylosis and partially on a voluntary basis. He felt that with proper physical therapy stimulation Maisch could sit, stand and walk for eight hours in an eight hour day and continuously lift and carry up to 50 pounds, and that Maisch could use his hands for repetitive actions. it does not appear from Dr. Goodman's report that he actually examined Maisch's hands.

 At first hearing, Maisch testified that because of almost continuous severe back pain, he is unable to sit for more than 45 minutes, after which he must stand for about a half hour, that he is unable to stand for more than an hour, and that he is unable to drive a car. He also testified that he was able to do a little housework, take care of most of his personal needs, and swim for short periods of time.

 On the basis of the above evidence, the ALJ concluded at the end of the first hearing that Maisch possessed the residual functional capacity to perform at least sedentary work and that he was therefore not disabled. He reached this conclusion by weighing the evidence presented by the various doctors as to Maisch's physical capacity and by considering Maisch's allegations of pain. Following Judge Pollack's remand for failure to comply with the appropriate standard, the Appeals Council asked the United States Attorney's Office to provide further information as to the basis for remand due to the brevity of the court order. The U.S. Attorney's office advised the Appeals Council that Judge Pollack believed there was a need for vocational evidence in light of what he considered to be a showing of physical problems, that he queried whether the ALJ had given appropriate weight to Maisch's subjective testimony or to the reports of Maisch's treating physicians, and that he was concerned as to whether Maisch was allowed to have counsel represent him at a rehearing of the ALJ's opinion.

 Upon remand, additional evidence was presented for the ALJ's consideration.

 On May 27, 1982 Maisch was examined by Dr. Harold Massoff ("Dr. Massoff"), a board certified consultative orthopedic surgeon. His physical examination revealed that Maisch had a deep tan from the waist up including the upper extremities and when the wrist support was removed from the left wrist there was no lightening of the tan. When Maisch sat over the side of the table he was able to extend his knees fully. Straight leg raising was positive at 60 degrees but when he flexed his hips he could to to 90 degrees. Left straight leg raising was positive at 60 degrees and an attempt to passively increase range of motion was met by resistance. Ankle jerks and knee jerks were bilateral and equal. he had a socklike hyperesthesia bilaterally from the ankles to the toes. he held his lumbar muscles tightly with firmness of the paraspinal musculature. There was limitation of range of motion of the lumbar spine. X-ray of the lumbosacral spine revealed narrowing of the L5-S1 interspace. Dr. Massoff's diagnosis was low back syndrome with possible radicular symptoms and some unphysiological findings of pain distribution and hyperesthesia. Dr. Massoff assessed Maisch's residual functional capacity and based upon this assessment in an eight hour work day Maisch could sit for six hours, stand and walk for two hours each, occasionally lift up to 20 pounds and occasionally carry up to 25 pounds. He could use his hands for repetitive actions bilaterally.

 The record contains an attending doctor's progress report to the Workers' Compensation Board by Dr. Kenneth Glass ("Dr. Glass"), an orthopedic surgeon. This report was dated April 1, 1981. Dr. Glass gave Maisch the diagnosis of cervical and lumbar sprain. He stated that Maisch was disabled as of the time of his report. He noted that Maisch was going for physical therapy and using a brace.

 On March 4, 1982 Maisch was examined by Dr. Justus Kaufman ("Dr. Kaufman"), an abdominal surgeon who had considerable experience as an orthopedic surgeon, at the request of his attorney. Physical examination revealed that he appeared in acute discomfort. he walked with a decided limp. Examination of the back revealed loss of the normal lumbar curve. Tenderness was present over the lower lumbar vertebra. Range of motion of the lumbar spine was markedly limited and he could not stand on his heels or toes. There was no atrophy of the thighs or calves. Straight leg raising was positive at 45 degrees bilaterally with positive Laseque and Patricks signs. There was weakness and extension of the big left toe present and bilaterally present Ely signs. Cervical spine revealed moderate restriction in all motions. Marked course tremors were present in both outstretched hands. Examination of the heart revealed tachycardia of 110 with elevated blood pressure at 150/104. There were narrowing arterioles in the fundi. Examination of the lower extremities revealed no pulsation in the right femoral artery and in the left dorsalis pedis. Dr. Kaufman's diagnosis was lumbar hypertrophic osteoarthritis associated with discogenic disease, hypertrophic osteoarthritis of the neck, diabetes, hypertension and arteriosclerosis obliterans involving the lower extremities associated with calcification of the abdominal aorta and its iliac branches. Dr. Kaufman opined that Maisch was totally disabled. In a subsequent report dated April 21, 1982 Dr. Kaufman noted that on March 26, 1972 Maisch sustained a fracture and subluxation of the navicular bone. Examination of the left upper extremity revealed a 25 percent restriction in dorsi and palmar flexion of the wrists. Tenderness was present over the navicular bone. Claimant had moderate weakness in hand grasps and tenderness over the tip of the thumb. X-ray of the left hand revealed an old fracture of the navicular bone with evidence of osteoporosis and arthritic changes in the ...


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