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June 4, 1985


The opinion of the court was delivered by: BARTELS

BARTELS, District Judge

Plaintiff, William Fransen, brings this action under § 205(g) of the Social Security Act, as amended (the "Act"), to review a final determination of the Secretary of Health and Human Services (the "Secretary"), which denied plaintiff's application for federal disability benefits. Defendant moves for judgment on the pleadings pursuant to Rule 12(c) of the Fed. R. Civ. P., affirming the Secretary's decision as supported by substantial evidence on the record.


 Plaintiff filed an application for disability benefits on September 5, 1980, claiming lower back injury, emphysema and arthritis as a basis for his claim. The application was denied November 16, 1980, as was Fransen's application for reconsideration. Fransen was granted a de novo hearing before an Administrative Law Judge ("ALJ"), held on June 17, 1981, followed by three supplemental hearings, after which the ALJ issued a decision, on August 2, 1982, affirming the denial of benefits. The Appeals Council denied Fransen's request for review on January 10, 1983, and the ALJ's decision became the final decision of the Secretary, reviewable by this Court under 42 U.S.C. § 405(g).

 On June 15, 1983, the parties stipulated to a remand of the case to the Secretary due to defendant's inability to prepare a transcript of the January 1982 hearing. The Appeals Council subsequently ordered further proceedings before another ALJ. A supplemental hearing was held on November 17, 1983, at which Fransen appeared pro se. On December 13, 1983, the second ALJ issued a decision recommending a denial of benefits, which became the final decision of the Secretary when it was adopted by the Appeals Council on February 2, 1984.

 In July 1984, defendant filed an answer to Fransen's complaint in this court, and, in the Fall of 1984, moved for judgment on the pleadings. Fransen subsequently filed a response in which he requests the court to reverse the Secretary's decision and award him benefits.

 The ALJ's decision

 At the time of the second ALJ's decision, Fransen was a 49 year old high school graduate who had worked, from 1961 to 1980, on the waterfront as a scaleman, lifting heavy bags of coffee onto and off scales. Although in 1975 Fransen suffered a myocardial infarction, he was able to return to the same work and continued such work until he threw out his back on May 12, 1980, while doing some lifting. Fransen tried to go back to work for a few days, but was unable to continue due to his injury, and he has been out of work since May 28, 1980.

 At the first hearing, the ALJ considered the evidence of seven physicians, a psychologist and a vocational expert. Of the physicians, one, Dr. Romano, was Fransen's treating physician; five had performed consultative exams and tests for the purpose of determining Fransen's disability; and the remaining one, Dr. Lanier, reviewed the other doctors' reports without examining Fransen himself. From the evidence of these experts and Fransen's testimony, the first ALJ concluded that Fransen, although unable to return to his past work, was capable of performing sedentary work such as cashier, clerk, parking attendant or assembly line worker.

 The second ALJ, whose decision is presented for review here, incorporated by reference all the evidence before the first ALJ, and in addition considered an updated medical report from Dr. Romano, medical reports from two more doctors, the report of a vocational expert retained by Fransen, and documents from the International Longshoremen's Association ("ILA") indicating that Fransen was entitled to disability benefits from that organization.

 Under examination by the ALJ, Fransen, appearing pro se, testified that he suffers a great deal of pain in his back, radiating down his left leg, at times excruciating, as a result of which he sleeps irregularly, must constantly shift position while standing or sitting, and takes several hot baths a day to relieve the pain. He further testified that he spends most of his time at home engaging in sedentary hobbies, climbing stairs twice a day, and caring for a diabetic, retarded son. He stated that when he does leave home, his wife drives him since he cannot take public transportation due to his pains. When his back is not bad, Fransen testified he can stand and sit from 1-1/2 to 2 hours, walk 4 to 5 blocks, but could not bend or squat.

 Most of the medical reports concurred that Fransen probably has a herniated intervertebral disc, although the objective tests, including x-rays and a CAT scan, are not conclusive regarding this diagnosis. Neurological exams conducted by Dr. Strassberg in September 1980, Dr. Romano in December 1980, and Dr. Levy in September 1981, produced little or no abnormal findings and no significant motor loss. The medical reports did observe that Fransen was significantly restricted in his ability to flex and bend.

 To relieve his back pain, Fransen has been taking regularly a variety of prescription pain relievers, as well as aspirin, which he testified made him "functional". He wears a lumbrosacral corset, a hernia truss, uses a cane when walking outside, and wears a "TENS" unit, an electrical device connected to the spine by electrodes, to make the pain "tolerable" when he goes out. At least one doctor has recommended he undergo a myelogram and possible surgery, which Fransen has not done.

 Fransen's other ailments appear to be less significant impairments. Despite heart problems in 1975, he continued working until his back problem developed, and, since 1975, has never been hospitalized for any heart related problem. In his testimony, Fransen complained of chest pains on excitement or exertion and his doctor reported that as a result he takes 3 to 4 nitroglycerene tablets a day which rapidly clear the pain. The medical evidence, the bulk of which ...

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