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HIRSCH v. HECKLER

July 15, 1985

JOSEPH HIRSCH, Plaintiff, against MARGARET M. HECKLER, Secretary of Health and Human Services, Defendant


The opinion of the court was delivered by: LEISURE

MEMORANDUM AND ORDER

LEISURE, District Judge :

Plaintiff, Joseph Hirsch ("Hirsch"), brought this action under Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to review the final decision of the Secretary of Health and Human Services ("the Secretary"), which denied Hirsch federal disability insurance benefits. The parties have cross-moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c).

 BACKGROUND

 Hirsch, born on July 30, 1927, worked as a shipping clerk and messenger for over thirty years for his brother's optical company. Toward the end of his employment, his work consisted of sorting, labeling and packaging lenses. As described in claimant's vocational report, the job required six hours of walking and seven hours of standing in a an eight hour day. His brother testified that "we very often had to send somebody else over to help him" and "he couldn't function at all sometimes."

 Plaintiff Hirsch ceased working in August, 1982. His brother testified that, at that time, his legs were very badly swollen and he was told by his doctor to stay off his feet. Hirsch applied for disability benefits on April 7, 1983. The application and subsequent request for reconsideration were denied.

 Hirsch requested and obtained a hearing before an Administrative Law Judge, where he was represented by his attorney. The ALJ found that Hirsch has a severe impairment, but that his impairments do not prevent him from performing his past relevant work. The ALJ's decision became the final decision of the Secretary when Hirsch's request for review by the Appeals Council of the Social Security Administration was denied.

 The medical evidence consists of reports from several physicians. Hirsch's treating physician, Dr. Arthur Appel, submitted a report after seeing claimant monthly from July 1977, when Hirsch was hospitalized, to May, 1983. The report states that claimant was admitted to Nyack Hospital in July, 1977 with acute pulmonary edema and found to have severe cardiomyopathy and rapid atrial fibrillation. The report further states that Hirsch continues to have shortness of breath on minimal exertion, intermittent ankle edema and atrial fibrillation. In a physical capacities evaluation, dated November 28, 1983, Dr. Appel reported that Hirsch is capable of standing for one hour and walking for less than one hour in an eight hour day. Dr. Appel lists other restrictions on Hirsch's capabilities and attributes them to his mental impairments and heart condition. Dr. Appel concludes, "This patient has had pulmonary edema in past and is continuously in danger of congestive heart failure if he is submitted to physical or environmental stresses which the average adult could handle."

 At the request of the Secretary, Hirsch was examined by physician Dr. George Friedman, radiologist Dr. Guy Freeman, and clinical psychologist Dr. L. A. Shewchuk. The psychologist found that Hirsch has a full scale IQ of 88 and reported indications of mild organic brain damage and mild emotional problems. The radiologist, Dr. Freeman, reported that the chest X-ray revealed slight arteriosclerotic changes of the aorta and increase in transverse cardiac diameter. The consulting physician, Dr. Friedman, after examining Hirsch on July 6, 1983, concluded that Hirsch had rheumatic heart disease, mitral insufficiency and borderline mental retardation. Dr. Friedman noted no edema. In addition, a Residual Functional Capacity Assessment form was completed on July 18, 1983, which indicates that claimant is able to stand and/or walk for about 6 hours in an 8 hour day. This form is not cited by the ALJ. Hirsch testified that he can walk about 4 blocks and stand for 25-30 minutes.

 The ALJ, in his decision, cites evidence indicating plaintiff's heart condition and mental limitations. He mentions Dr. Appel's report of intermittent and varying ankle edema and Dr. Friedman's finding of no edema at the time of his examination. The ALJ also cites Dr. Appel's finding that Hirsch can walk and stand for one hour or less a day and the vocational report stating that Hirsch's former job required six hours of walking and seven hours of standing per day.

 The ALJ concludes that claimant is able to perform his past relevant work and is thereby disqualified from disability insurance benefits. In support of this finding, the AlJ discusses the limitations on Hirsch's ability to lift and carry and notes that his former job did not require lifting and carrying of weights more than five pounds. The ALJ further states that claimant is able to grasp, pull and push, as required by his job, that his IQ of 88 is adequate to function in his former work and that his heart condition is not severe enough to prevent claimant from performing his past relevant work. Absent from this evaluation is a discussion of the discrepancy between Dr. Appel's assessment of claimant's ability to walk and stand, together with claimant's own testimony on the subject, and the walking and standing requirements of his former job. The job required Hirsch to walk and stand for at least six times longer per day than the length of time Hirsch is capable of walking and standing according to the report of the treating physician.

 DISCUSSION

 In reviewing the record, the Court does not displace the Secretary as the finder of fact; rather, a finding of fact by the Secretary is conclusive if supported by substantial evidence. 42 U.S.C. § 405(g); Carroll v. Secretary of Health and Human Services, 705 F.2d 638, 642 (2d Cir. 1983). Substantial evidence has been described as "more than a mere scintilla, and is defined as such relevant evidence as a reasonable man might accept as adequate to support a conclusion." Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978). Thus, the question presented is whether the ALJ's finding that "claimant's impairments do not prevent the claimant from performing his past relevant work" is supported by substantial evidence.

 Plaintiff argues in support of its motion for judgment on the pleadings that a reversal is warranted because the finding that claimant is capable of performing his past work is not supported by substantial evidence, particularly since the job required plaintiff to stand for long periods of time, an issue that the ALJ failed to analyze. Plaintiff urges that the opinion of Dr. Appel be given great weight, since Dr. Appel had seen Hirsch regularly for over five years and while Hirsch was employed and ...


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