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September 25, 1985

ANGEL RIVERA, Plaintiff,
MARGARET M. HECKLER, Secretary of Health and Human Services, Defendant

The opinion of the court was delivered by: CONNER



 Plaintiff Angel rivera ("Rivera") brought this action pursuant to §§ 205 (g) and 1631 (c) (3) of the Social Security Act ("the Act"), as amended, 42 U.S.C. §§ 405 (g), 1383 (c) (1982), seeking review of a final determination of the Secretary of Health and Human Services ("the Secretary") that is not "disabled" within the meaning of the Act, and therefore is not entitled to disability insurance benefits. This matter is now before the Court Procedure. I have reviewed the testimony and exhibits received by the Secretary, and I have concluded, for the reasons stated below, that the Secretary failed to apply proper legal standards and made findings that are not supported by substantial evidence. Accordingly, Rivera's motion is granted, the Secretary's determination that Rivera is not disabled is reversed, and this matter is remanded to the Social Security Administration ("SSA") for a computation of benefits.


 Rivera is a 41-year-old man with an eighth-grade education (Tr. at 29). *fn1" After completing military service, he held a variety of jobs, working as a carpenter for seven years, as trucker's helper for five years, and finally, as a heavy equipment operator for the New York State Department of Transportation (Tr. at 31-33). On December 21, 1981, Rivera sustained an injury to his lower back in an on-the-job accident and thereafter suffered lower back problems that prevented him from working steadily (Tr. at 33-34). On July 7, 1983, Rivera's back "gave in" while he was working and, after that incident, he stopped working altogether (Tr. at 34). His condition has been diagnosed as a herniated disc (Tr. at 84, 117), which causes pain and numbness in the lower back and in both legs (Tr. at 37-38).

 On October 4, 1983, Rivera filed an application for disability benefits with the SSA, citing his herniated disc as the cause of his disability (Tr. at 65). The SSA denied his application, both initially (Tr. at 71-74), and on reconsideration (Tr. at 81). Rivera requested a de novo hearing of his application (Tr. at 109), and on April 18, 1984, such a hearing was held before Administrative Law Judge Arthur Newbauer ("the ALJ").

 Rivera was the only person who testified at the hearing. He stated that lower back problems prevented him from working, explaining that he suffered form constant plain in his back, which he said extended to his legs when he walked "a lot" (Tr. at 34, 37-38). He stated that his lower back pain worsened when he sat continuously or when he stood for more than twenty minutes at a time (Tr. at 39-40). He testified that in order to prevent this increase in pain, he constantly had to shift his position, alternating between sitting, standing, walking, and lying down (Tr. at 40-41). When asked if there was anything he could do to lessen the pain, he replied that there was not, other than wearing a back brace (Tr. at 38).

 Rivera testified that his daily activities included painting ceramics, watching television, and listening to the radio. He stated that he had difficulty getting dressed and that he was unable to do minor household chores such as carrying groceries, gardening, or other tasks that require bending (Tr. at 86, 107, 103).

 In addition to Rivera's testimony, the ALJ received into evidence a number of medical reports from Dr. Michael H. Kamalian, Rivera's treating physician, Dr. G. Michael Croker, Rivera's chiropractor, and two unidentified consulting physicians retained by the SSA. In reports dated October 26, 1983, and November 10, 1983, Dr. Kamalian diagnosed Rivera's condition as a herniated disc in his lower back. In his report of October 26, 1983, he described Rivera as "totally disabled" (Tr. at 110), and in his report of November 10, 1983, he opined that rivera had a "chronic low back disorder" and a "permanent partial disability" (Tr. at 118). Dr. Kamalian issued an updated report on February 13, 1984, in which he stated that Rivera had acute paraspinal muscle spasm with radiculopathy (Tr. at 120). he concluded that Rivera was "still disabled at [that] time" (Id.).

 In response to a request form the SSA, Dr. Kamalian assessed rivera's residual functional capacity in a report dated April 16, 1984. He indicated that Rivera could occasionally lift up to five pounds, could do no substantial carrying at all, could sit not more than four hours in the course of an eight-hour day, could not stand for even one hour in the course of an eight-hour day, and could not walk more than two hours in the course of an eight-hour day (Tr. at 129). Dr. Kamalian stated that Rivera could reach frequently and bend or squat occasionally, but could not crawl or climb (Id. ). In a report issued one week later, April 23, 1984. Dr. Kamalian reiterated that Rivera's working capabilities were limited, but suggested that rivera "could . . . be rehabilitated to do a sedentary type of job" (Tr. at 131).

 Dr. G. Michael Crocker, a chiropractor who treated the claimant once or twice a month from January 1982 to January 1984 (Tr. at 36, 111), provided additional analytical reports. *fn2" Dr. Croker diagnosed Rivera's condition as severe lumbosacral myofuscitis accompanied with L-5 disc syndrome and compression of the lumbosacral plexus (Tr. at 111). He indicated that Rivera's symptoms included severe pain in the lower spine with bilateral radiation to the legs, acroparathesia, a guarded and antalgic gait, and increased pain with Rivera moved or coughed (Id.). He stated that prolonged standing and sitting aggravated Rivera's pain, and he advised against "any and all lifting" (Id.).

 Two consulting physicians retained by the SSA provided the remainder of the medical reports. Neither of them examined Rivera, but instead based their conclusions on a review of his medical file. Both doctors reiterated the essential findings of Dr. Kamalian, likewise diagnosing Rivera's condition as a herniated disc (Tr. at 122, 124). However, the consultants disagreed with Dr. Kamalian's evaluation of Rivera's residual functional capacity. One of the consultants found Rivera capable of frequently lifting or carrying objects weighing 25 pounds, and occasionally lifting or carrying objects of up to 50 pounds (Tr. at 121). He also found Rivera capable of walking or standing six hours in an eight-hour day, and sitting six hours in an eight-hour day (Id.). Finally, he stated that Rivera could frequently climb, balance, stoop, kneel, crouch, and crawl (Id.). He concluded that Rivera retained the ability to perform a range of medium level work activities (Tr. at 122). The second consulting physician was in agreement with the first consultant's estimate of Rivera's ability to lift, carry, sit, and stand or walk, but found that Rivera could climb, balance, stoop, kneel, crouch, and crawl only occasionally (Tr. at 123).

 The ALJ issued a decision on July 23, 1984. He found that Rivera's impairment prevented him from returning to his previous employment, but concluded that Rivera did not suffer from a physical impairment so severe as to prevent him from performing at least sedentary work (Tr. at 9). In support of his finding, the ALJ stated that Dr. Kamalian, Rivera's treating physician, had indicated that Rivera had the capacity to perform sedentary work (Id.), and he noted that the two consulting physicians had found that Rivera had the residual functional capacity to perform medium level work (Id.). The ALJ also stated that in view of the "medical evidence" and his observation of Rivera's demeanor at the hearing, he found Rivera's testimony regarding his restricted ability to sit or stand to be "exaggerated" (Id.). For these reasons, he determined that Rivera was not disabled within the meaning of the Social Security Act.

 On November 6, 1984, the Appeals Council denied Rivera's request that it review the ALJ's decisions, thereby making that decision the final determination ...

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