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March 29, 1985

RALPH A. TAMBORRA, Plaintiff, against MARGARET M. HECKLER, as Secretary of Health and Human Services, Defendant

The opinion of the court was delivered by: SWEET


This is an action brought by plaintiff Ralph Tamborra ("Tamborra") 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 Tamborra's application for federal disability insurance benefits. Tamborra 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

 Tamborra filed an application for disability insurance benefits on May 18, 1983, alleging that he had been disabled since January 1, 1983. His application was denied initially and on reconsideration, and Tamborra subsequently requested a hearing to review his application. The hearing was held on December 13, 1983. Tamborra appeared with his attorney before Administrative Law Judge Hastings Morse, who considered the case de novo. On January 10, 1984 the Administrative Law Judge ("ALJ") found that Tamborra was not under a disability, and the Appeals Council affirmed that determination. Tamborra subsequently commenced this action to review the final decision of the Secretary.

 The Record Below

 Tamborra was born on June 14, 1938, and at the time of the hearing was forty-six years of age. He attended high school through the tenth grade and has a high school equivalency diploma. His relevant work background consists of employment for sixteen years as a corrections officer for the Westchester County Department of Correction. Tamborra last worked in January, 1983.

 Tamborra was hospitalized at Arden Hill Hospital from February 8, 1983 to February 18, 1983. He complained of low back pain which radiated to his left lower extremity. A CAT scan revealed a bulging disc. On admission, he was examined by Dr. Michael Kamalian ("Dr. Kamalian"). Dr. Kamalian reported that a physical examination revealed paraspinal muscle spasm with pain radiating down the left lower extremity and diagnosed Tamborra's condition as herniated nucleus pulposus. Following ten days of traction and physical therapy, Tamborra was discharged. He was prescribed pain medication and instructed to perform back exercises.

 In a follow-up report dated May 31, 1983, Dr. Kamalian diagnosed Tamborra as having a low back disorder with nerve root irritation secondary to a herniated disc. Dr. Kamalian reported pertinent physical findings including a tilt to the left, severe paraspinal muscle spasms, positive straight leg raising at 40 degrees bilaterally, and restricted range of motion. He did not note any atrophy. He stated that on May 17, 1983, he advised Tamborra to undergo surgery for the herniated disc.

 On July 17, 1983 Tamborra underwent a consultive examination by Dr. Martin Altchek ("Dr. Altchek"), an orthopedist. In a report dated August 1, 1983, Dr. Altchek reported that Tamborra complained of low back pain which radiated down the left leg to below the knee but predominantly on the outer aspect of the leg. Tamborra related that he underwent physical therapy, traction and had a positive CAT scan. Dr. Altchek reported that Tamborra walked with a cane and would not bend his spine more than five degrees. Tamborra would not heel or toe walk or kneel on a low stool, claiming that he was unable to do these maneuvers. Dr. Altchek reported that Tamborra was able to perform straight leg raising in the sitting position but complained of left buttock pain. He reported that Tamborra's hamstrings were tight and were seven degree short of full extension. Straight leg raising in the supine position elicited complaints of pain at twenty to thirty degrees but the pain was lessened after knee flexion. Tamborra complained of marked tenderness to light touch over the left posterior superior iliac spine and lumber spine. Dr. Altchek interpreted lumbosacral spine x-rays taken in his office as being within normal limits. Dr. Altchek concluded that while Tamborra might have some degree of nerve root compression, there were no objective findings to substantiate Tamborra's claim of severe pain and that he had no more than a mild impairment which would not prevent him from engaging in most normal activities.

 On May 18, 1983 a claims representative for SSA completed a personal interview of Tamborra. The claims representative noted that there was observed difficulty in walking and sitting. It was reported that Tamborra "got up from his chair by bracing himself against the desk, let out a gasp of pain, shifted position in his chair as if in pain. Walked slowly with a limp."

 On August 24, 1983 a claims representative for SSA completed a subsequent personal interview of Tamborra. The claims representative reported observing difficulties in his ability to walk and to sit. It was noted that he leaned heavily on a cane and walked slowly. He was observed having difficulty "getting up from sitting" and the representative had to pick up something which Tamborra dropped. The representative stated that Tamborra "seemed to be sincere in his allegation of discomfort. It was obvious from facial expression that he was in pain."

 In a letter to Tamborra's attorney dated October 20, 1983, Dr. Kamalian reported that he has been treating Tamborra since September 1976. He reported that Tamborra has been treated conservatively with a back brace and hospitalization with traction and bedrest. Dr. Kamalian reported that Tambora re-injured his back in January 1983 and has been disabled as of that date. Dr. Kamalian opined that Tamborra was unable to resume any type of strenuous activity at that time or in the future.

 In conjunction with his letter, Dr. Kamalian also completed a physical capacities evaluation. He stated that Tamborra could sit for three hours at a time and walk or stand for one hour each. He also stated that during an eight hour work day, Tamborra could sit, stand and walk for one hour each. He also reported that Tamborra could not lift or carry any significant weight but could use his upper extremities for most repetitive actions. Dr. Kamalian assess that Tamborra could occasionally bend and squat, and could never climb, crawl or reach. He also reported that Tamborra was moderately restricted in activities involving unprotected heights.

 At the hearing, Tamborra testified that he was unable to perform a sedentary job because sitting or standing too long causes sharp pain which radiates down his leg. To alleviate the pain, he has to lay flat in bed for two to three hours per day. Due to this limitation and the pain, he testified that he could not work an eight hour day. He also testified that he has to wear a back brace and take pain medication. Tamborra testified that he is able to sit for one hour at a time, stand for fifteen minutes at the most and walk three or four blocks before he gets sharp pain in his left leg. He indicated that he sees Dr. Kamalian every third week. He testified that although Dr. Kamalian had recommended surgery at one time, ...

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