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December 17, 1985


The opinion of the court was delivered by: LASKER


Aurelia Garcia brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) (1982) to review a final determination of the Secretary of Health and Human Services (the "Secretary") denying her application for Social Security disability benefits. Garcia moves and the Secretary cross-moves for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons stated below, Garcia's motion is granted insofar as it seeks a remand to the Secretary for reconsideration upon the existing record. The Secretary's cross-motion is denied.


 The claimant was born in Puerto Rico in 1925, was educated through the third grade there, and cannot read or write English. She apparently has some difficulty communicating in English. For over twenty years prior to her application for disability benefits, Garcia worked as a cookie sorter and packager for the same company. Her job required her to remove broken cookies from a conveyor belt by hand and at times to package the unbroken cookies by hand. She performed this work approximately eight hours a day, primarily from a sitting position. The claimant left her job in 1981 complaining of pain and swelling in her hands and arms.

 Garcia filed applications for disability insurance and supplementary security income benefits on June 18, 1981 based upon problems with her arms, gall bladder and appendix. The Secretary denied her applications initially on August 28, 1981 and on reconsideration on December 17, 1981. The claimant then requested a de novo disability hearing, which was held on April 26, 1982 before Administrative Law Judge Jonathan Jacobs (the "ALJ"). At this hearing the claimant and the claimant's vocational expert testified, and the ALJ received in evidence medical records and evaluations submitted by three physicians as well as the written evaluation submitted by the vocational expert.

 The evidence before the ALJ may be summarized as follows:

 1. The claimant testified that she had been forced to stop working in 1981 as a result of her medical condition, that she continued to experience pain in her hands and shoulders, and that she took Tylenol several times a day to alleviate the pain. She explained that she was able to sit and stand without difficulty, but not for prolonged periods. Garcia also stated that she required the assistance of her daughter to take care of her daily needs, though she was able to do some cooking and cleaning, to wash dishes and clothes, to tend house plants and shop with her daughter, and on occasion to attend church and go visiting. Record at 28-35.

 2. The claimant's vocational expert, Edmond Provder, stated in his testimony and in his written report that Garcia's performance on standardized tests measuring fine, medium, and gross movements of the arms and hands was well below competitive levels for people who are industrially employed. He found that the claimant had difficulty using both hands for continuous repetitive movements such as grasping, that she lacked strength in both arms and hands, and that she experienced pain and fatigue after working at the tests for three hours. In response to a question from the ALJ, the vocational expert testified that the claimant's test results were internally consistent and that he believed she was trying to do her best. He also noted that Garcia had trouble following directions more complex than two-and three-step instructions, even when verbal directions were accompanied by repeated demonstrations. The vocational expert concluded before the ALJ that the claimant did not have the dexterity to perform her former job and stated in his report that she was unable to perform any substantial gainful activity on a sustained basis. Record at 35-45, 51-52, 145-46.

 3. The claimant's treating physician, Mark S. Feierstein, examined her at the request of her employer on a number of occasions between January 29, 1979 and March 31, 1981. Dr. Feierstein's examinations and interpretations of diagnostic tests in 1979 led him to diagnose Garcia's condition as "medial epicondylitis" (inflammation of the connective material or adjoining tissue which is attached to the bone that extends from shoulder to elbow *fn1" ) "with possible intermittent compression of the ulnar nerve based on exaggerated cubitus vulgus" (pinched nerve resulting from a deformity in the forearm). Tests in late 1979 disclosed a developing nerve problem at the right elbow, and the claimant underwent surgery to correct the problem in early 1980. Although post-operative examinations and tests indicated that the nerve problem had been substantially corrected, Dr. Feierstein concluded in a March 31, 1981 letter to Garcia's employer that she "continue[s] to have the problem with tendonitis" and that "it is unlikely that she will in the future be able to be employed in an occupation that requires repeated manipulative skills with the right upper extremity." Record at 115-33.

 4. The Secretary's consultative examiner, Dr. Peter Strassberg, who appears to have examined the claimant on one occasion in July 1981, noted that she had had surgery on her left elbow in 1976 as the result of an accident, in addition to the corrective surgery on the right elbow in 1980. He diagnosed her complaints of pain in the shoulders and pain and welling in the hands as "osteoarthritis" (chronic degenerative joint disease) and attached an x-ray report in which Dr. M. Eliot Gold noted that the shoulder x-ray indicated "peritendinitis calcerea" (painful inflammation of tendon sheath marked by calcium deposits). Dr. Strassberg also found in his examination that Garcia experienced a decreased range of motion due to pain, that she could raise both her arms above the horizontal, that she could make a full fist with both hands, and that digital dexterity was good. He indicated on a questionnaire entitled "Residual Functional Capacity Evaluation" that the claimant could sit for eight hours and walk or stand for two hours in a normal work day, could occasionally lift or carry up to fifty pounds, could frequently bend, squat, crawl, climb and lift or carry up to ten pounds, and could use both hands for repetitive grasping, pushing or pulling, and fine manipulations. Record at 134-39.

 5. The claimant's consultative examiner, Dr. Justus Kaufman, examined her on March 4, 1982 without the benefit of her medical and hospital records. He diagnosed the claimant as suffering from "hypertrophic osteoarthritis" (chronic degenerative joint disease marked by enlargement of bone and cartilage) of the back, arms, neck, and hands. Although Dr. Kaufman found no impairment of movement in Garcia's elbows or wrists, he noted some restriction in arm and neck movement, marked weakness in handgrasp, and problems with digital dexterity. He indicated on a questionnaire entitled "Physical Capacities Evaluation" that the claimant could sit or stand for two hours in a normal work day, could occasionally lift or carry up to ten pounds, could crawl, climb, and reach above shoulder level, but could not bend, squat, or use either of her hands for repetitive grasping, pushing or pulling, and fine manipulation. Record at 140-41.

 In a decision dated June 16, 1982, the ALJ determined that Garcia was not "disabled" within the meaning of the Social Security Act, 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A), because although he found that under the regulations, 20 C.F.R. §§ 404.1521, 416.921 (1982), she was severely impaired, he concluded that she had the residual functional capacity to do her previous work, 20 C.F.R. §§ 404.1561, 416.961. This determination became the final decision of the Secretary when it was adopted by the Appeals Council on September 27, 1982.


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