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PASCARIELLO v. HECKLER

November 8, 1985

FRANK PASCARIELLO, Plaintiff,
v.
MARGARET M. HECKLER, Secretary of the Department of Health and Human Services, Defendant



The opinion of the court was delivered by: EDELSTEIN

OPINION AND ORDER

EDELSTEIN, District Judge:

Plaintiff brought this action under sections 205(g) and 1631(c)(3) of the Social Security Act, as amended ("Act"), 42 U.S.C. §§ 405(g) and 1383(c)(3), appealing a final decision of the Secretary of Health and Human Services ("Secretary"), which denied plaintiff's applications for disability insurance benefits and Supplemental Security Income ("SSI") benefits. Plaintiff has moved, and defendant has cross moved, for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). This case is hereby remanded for further consideration.

 BACKGROUND

 Plaintiff, who was born March 25, 1951 [TR. 9], alleges that he was disabled as a result of injuries received on November 3, 1978, when a chimney fell on him while he was working as a roofer [TR. 10]. Specifically, plaintiff claims that as a result of residual trauma stemming from these injuries, including incontinence and subjective complaints of pain, he is incapable of performing sedentary work, and, thus, disabled within the meaning of the Act. Plaintiff's Memorandum of Law at 10-11.

 Although plaintiff has completed tenth grade, he reads at a mid-elementary school level. [TR. 9]. While he has worked at a variety of jobs from 1967-1979, his social security earnings record indicates that he was unemployed much more than he was employed. [TR. 10]. During this period, he held such jobs as supermarket cashier and stock clerk; oil lubrication man and tire changer at a Sears automotive department; extruder in a plastics factory, eventually operating four machines and supervising another; gas station attendant at a full service gas station; machine operator at Slatz Federal Bearing; and as a roofer. [TR. 10].

 On November 3, 1978, while working as a roofer, he was injured when a chimney fell on him. Upon hospitalization, he underwent surgery for multiple trauma, including torn mesocolon, avulsion of seromuscular layer of rectosigmoid colon and hemoperitonium. There was severe contusion of the urinary bladder. There were multiple fractures of the pelvis with displacement of the pubis symphisis and left hemipelvis. Although discharged on December 6, 1978, plaintiff's urinary symptoms had not completely cleared up and he was ambulatory with the aid of crutches. [TR. 135].

 Plaintiff relies on the reports of his treating physician, Dr. Kanaar, dated April 30, 1980 [TR. 144-146]; July 25, 1983 [TR. 147-148] and November 5, 1983 [TR. 149-150]. Dr. Kanaar, upon his initial examination diagnosed the plaintiff as suffering from "[c]hronic left sacroilliac strain following a fractured pelvis with displacement." [TR. 146]. Additionally, he noted the plaintiff had a learning disability and a history of emotional instability that negatively impacted on his capacity for rehabilitation. [TR. 146].

 On July 25, 1983, Dr. Kanaar wrote that while plaintiff was 100% disabled, as of that date, plaintiff had refused corrective surgery, commenting that such refusal was not unreasonable. Dr. Kanaar based this determination on the fact that plaintiff unexpectedly lost his daughter twelve hours after heart surgery, and the effect of this loss was to shake plaintiff's confidence in the medical profession. [TR. 147-148].

 Finally, on November 5, 1983, Dr. Kanaar reported that the plaintiff's "[s]ymptoms and signs of left sacroiliac instability and stress incontinence persist." [TR. 149]. He determined the plaintiff to be totally and permanently disabled as a result of the failure of conservative treatment measures, coupled with plaintiff's refusal to submit to corrective surgery, intense pain, incontinence, illiteracy and mental retardation. [TR. 149].

 Plaintiff further relies on the report of consulting psychologist Dr Thomsen who noted that the plaintiff had trouble remaining seated for fifteen minutes [TR. 159]; the report of Dr. Josephy, who diagnosed him as incontinent [TR. 166]; and the testimony of the vocational expert, Mr. Weatherford, who stated that either the inability to concentrate due to pain or the necessity to regularly leave the work station due to incontinence would significantly reduce the number of possible jobs available to the plaintiff. [TR. 68].

 Plaintiff contends that the Secretary's determination that plaintiff is not permanently disabled is not supported by substantial evidence in that the Administrative Law Judge ("ALJ") failed to give proper weight to the testimony of the treating physician. Additionally, plaintiff maintains that the ALJ did not properly consider the plaintiff's testimony concerning his subjective pain and incontinence and failed to give proper weight to the testimony of the vocational expert. Plaintiff's Memorandum of Law at 10-11.

 Defendant contends that the findings of the ALJ are supported by substantial evidence and hence binding on this court.

 As to the plaintiff's allegation of disability due to physical impairment, the Secretary contends that treating physician Kanaar's findings are contradicted by those of consulting physician Dr. Worrell who found: (1) the plaintiff's gait was within normal limits; and (2) the plaintiff had unrestricted straight leg raising and only slightly restricted lumbroscaral movement. Based on these findings, Dr. Worrell ...


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