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January 22, 1986


The opinion of the court was delivered by: WEXLER

WEXLER, District Judge

Plaintiff Ellen Martinez brings this action under Section 205(g) of the Social Security Act (Act), as amended, 42 U.S.C. ยง 405(g), for review of a final determination by the Secretary of Health and Human Services (Secretary) that denied plaintiff's application for a period of disability and disability insurance benefits. Mrs. Martinez filed an application for benefits, which was denied initially and on reconsideration. She then requested a hearing, which was held on May 2, 1983. The Administrative Law Judge (ALJ) issued an opinion on August 26, 1983 holding that plaintiff was not disabled. This decision became the final decision of the Secretary when approved by the Appeals Council on October 19, 1983. It is from this decision that the plaintiff appeals to this Court. The parties now cross-move for judgment on the pleadings pursuant to Rule 12(c), Fed.R.Civ.P.


 Mrs. Martinez, now forty-seven years old, has three years of college education. Until April 20, 1981, plaintiff had been employed for eight years as a customer service representative for Con Edison. On that day she was caught between two closing elevator doors and suffered a concussion and the injuries to her back and shoulder and neck on which she bases her claim of disability. Since then she has worked for one day on May 5, 1981 and for one month from June 24 to July 24, 1981. On July 26, 1981 plaintiff was hospitalized for three weeks suffering from lower back and neck pain, severe headaches, weakness and dizziness.

 At her hearing before the ALJ, Mrs. Martinez testified that she cannot dress herself, clean her house or wash dishes, and that her relatives and friends must help her with everyday chores. Further, she testified that she is in continuous pain, experiences weakness in her left hand and shoulder, has to sleep in traction, sit in traction for her neck four times a day, and can no longer socialize. Mrs. Martinez stated that she cannot stand for fifteen minutes and can only sit for five or ten minutes at a time because of pain. She uses a cane to walk and wears a neck brace.

 Dr. Frank Folk, the plaintiff's treating physician, opined that plaintiff is totally disabled and cannot engage in any gainful employment. This opinion, formulated after three years of examinations and treatment of plaintiff, was supported by a diagnosis of cervical and lumbar radiculitis based on such findings from physical examinations as marked decrease in spinal motion, paravertebral muscular spasms, and tenderness in the lower cervical area. Objective evidence from x-rays, CAT scans, and bone scans showed a narrowing of several cervical and lumbar vertebral interspaces, a non-acute compression fracture at C6, degenerative cervical changes, posterior herniation of the L4, L5 disc, anterior herniation of the L5, Sl disc, loss of normal cervical curvature, and minimal thoracic scoliosis. Finally, Dr. Folk evaluated plaintiff's ability to sit, stand, and walk at one hour each in the course of an eight hour day. He prescribed Talwin, which is both potent and a narcotic, and at least five other drugs, all typically used to relieve mild to moderate pain.

 Dr. Harvey Manas examined Mrs. Martinez once in June 1983. His diagnosis was chronic cervical and lumbar sprain, cervical arthritis and a possible herniated disc, as evidenced by a CAT scan. Notably, he posited that while there were "objective findings" plaintiff "is somewhat of an hysterical person and has a large functional overlay added to her objective findings" (Exhibit 22). In particular, Dr. Manas was asked to complete a residual functional capacity form with a notation that the ALJ wanted to know if claimant was a "molingerer" [sic] (Tr. 151). He was asked to check off those functions where claimant's capacity was limited. Dr. Manas indicated that bending, lifting, and carrying were limited.

 Dr. Kenneth Cerny, a neurologist, examined Mrs. Martinez once in December 1982. His report suggests that he did not find her completely cooperative. He found no neurologic deficit. Although he notes some objective findings he suggests that some of her responses are overly dramatic and indicative of hysteria. Dr. Cerny concludes that certain responses "suggest that this patient has complaints which are not secondary to bonifide [sic] anatomic pathology" (Exhibit 16).

 Dr. Arthur Meisel, a specialist in neurology and psychiatry, examined Mrs. Martinez in April 1983. He found her cooperative and responsive, but presenting "an overall appearance of invalidism." He further noted back spasms and pain and plaintiff's inability to push and pull, and do fine manipulations with her hands. Dr. Meisel's concluding diagnosis was: "Psychogenic pain response. This is completely involuntary and totally disabling" (Exhibit 17).

 The ALJ determined that the plaintiff has a severe impairment of the lower back and cervical spine that does not meet the Listings. Moreover, he found that plaintiff retained the residual functional capacity to sit for seven hours, stand and walk for two hours each, and do the bending and reaching required in her former work. The only residual functional capacity he found she lacked was the ability to do a great deal of bending and kneeling. Accordingly, the ALJ concluded that plaintiff could return to her past relevant work as a customer service representative.

 The ALJ did not find the plaintiff's complaints of pain credible or persuasive, and he characterized her medication as not significant analgesics. He discounted objective medical findings of disc herniation, muscle spasms, and restricted movement. In particular he relied on the reports of the two consulting physicians, Doctors Manas and Cerny. The ALJ did not discuss at any length the opinion of the treating physician, Dr. Folk, or the objective findings of the two radiologists, Doctors Dinhofer and Wexler. (Tr. 128, 144). In addition, the ALJ finds the fact that plaintiff has not received any relief from her pain from medical treatment an indicator that her pain is not real. He also states that he could not observe any evidence of pain in her movement during the administrative hearing.

 Although the ALJ did not address it directly at any length, underlying his evaluation of Mrs. Martinez's disability is the assessment, suggested by the two consulting physicians, that she is an hysteric and her illness not real, her testimony not credible, and her symptoms unreliable. Implicitly, the ALJ construes this as malingering.


 The Secretary's determination that plaintiff can perform her past relevant work is conclusive if supported by substantial evidence on the record as a whole. Substantial evidence means "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971). Nevertheless, the expert opinion of a treating physician on the subject of disability is binding on the Secretary unless substantial evidence to the contrary is presented. Eiden v. Secretary of Health, Education and Welfare, 616 F.2d 63, 64 (2d Cir. 1980). In this instance the treating physician of long standing, Dr. Folk, assesses claimant's residual functional capacity to sit as one hour out of a eight hour day. In contrast, Dr. Manas states plaintiff can sit for at least six hours out of an eight hour day. While the expert opinion of a treating physician is binding on the Secretary unless it is substantially contradicted, Bluvband v. Heckler, 730 F.2d 886, 894-95 (2d Cir. 1984), the opinion of a physician based ...

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