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VASQUEZ v. SECRETARY OF HHS

April 23, 1986

ANGEL VASQUEZ, Plaintiff,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant



The opinion of the court was delivered by: CONNER

OPINION AND ORDER

CONNER, D.J.:

Plaintiff Angel Vasquez ("Vasquez" or "the claimant") brought this action under sections 205(g) and 1631(c)(3) of the Social Security Act ("the Act"), as amended, 42 U.S.C. §§ 405(g), 1383(c)(3) (1982), seeking review of a final determination of the Secretary of Health and Human Services ("the Secretary") that plaintiff is not disabled as defined by the Act, and therefore is not entitled to disability insurance or Supplemental Security Income ("SSI") benefits.

 Vasquez has moved for judgment on the pleadings pursuant to rule 12(c), Fed. R. Civ. P., or in the alternative, for an order remanding this matter to the Secretary to permit the record to be supplemented. The Secretary has cross-moved for an order remanding this matter to the Secretary. I have reviewed the exhibits and testimony received by the Secretary, and I have concluded, for the reasons stated below, that the Secretary failed to apply the correct legal standard in reaching his decision. However. I cannot find on the current record that plaintiff is clearly entitled to benefits. Accordingly, Vasquez's motion for judgment on the pleadings is denied; his motion to remand and the Secretary's cross-motion to remand are granted.

 Background

 Plaintiff is a 43-year-old man with a limited education (Tr. at 30-32). *fn1" He speaks mainly Spanish, and has difficulty reading, writing, and understanding English (Tr. at 33). For about nine years, plaintiff was employed as a truck driver and delivery man (Tr. at 34-35). In that capacity, plaintiff was regularly required to lift objects weighing several hundred pounds (Tr. at 35-36). On June 20, 1983, plaintiff injured his back while delivering packages (Tr. at 38-39).

 On July 27, 1983, and again on March 23, 1984, plaintiff filed applications for disability insurance and SSI benefits (Tr. at 100-03). Both applications were denied initially (Tr. at 81-83, 120-23) and on reconsideration (Tr. at 94-99, 133-35). Plaintiff requested a de novo hearing of his applications, and on November 1, 1984, such a hearing was held before Administrative Law Judge Emmanuel Tannenbaum ("the ALJ").

 Plaintiff was the only person who testified at the hearing. He stated that when he injured his back he immediately felt a severe pain across the lower part of his back that radiated down to his knees (Tr. at 42, 155). The pain was so intense the next morning that plaintiff could not get out of bed (Tr. at 155). Since the accident, plaintiff has continued to experience severe back and leg pain (Tr. at 42). On doctor's instructions he wears a back brace and walks with a cane (Tr. at 43). Nevertheless, he has difficulty sitting and walking (Tr. at 42-44). Plaintiff's doctors have prescribed various pain-killing medications (Tr. at 157, 160), but according to plaintiff, the medication affords him only temporary relief from his intense pain (Tr. at 51-53).

 Plaintiff testified that he began seeing Dr. Thomas J. Fitzgerald, a chiropractor, on July 5, 1983 (Tr. at 39, 155). Initially, Dr. Fitzgerald treated plaintiff on a daily basis. Plaintiff continues to see Dr. Fitzgerald about three times a week (Tr. at 40, 71, 155). Beginning in May 1984, plaintiff began seeing two physicians, Dr. Sana Bloch and Dr. Richard Memoli (Tr. at 41-42, 158-59). Drs. Bloch and Memoli each see plaintiff twice a month (Tr. at 41-42).

 In addition to Vasquez's testimony, the ALJ received into evidence medical reports from a number of doctors, including plaintiff's chiropractor and treating physicians and several consulting physicians. In a report dated July 11, 1983, Dr. Fitzgerald indicated that plaintiff was "totally disabled" (Tr. at 138). Dr. Li, a Social Security Administration consulting physician, examined plaintiff in August 1983. Plaintiff exhibited muscle spasm in the hip region, limited straight-leg raising, and tenderness and pain related to the low back area. Plaintiff had difficulty squatting and bending. Dr. Li concluded that plaintiff was suffering from a severe sprain of the lumbrosacral spine. Dr. Li made no assessment of plaintiff's residual functional capacity (Tr. at 139-40).

 Based on Dr. Li's report, Dr. Kovary, a non-examining review physician, completed a Bureau of Disability Determinations "Residual Functional Capacity Assessment" form. He concluded that plaintiff could sit and stand about six hours in an eight-hour workday, and lift up to twenty-five pounds. He therefore concluded that plaintiff was capable of performing light work (Tr. at 146-48).

 Dr. Sharma, a Social Security Administration consulting physician, examined plaintiff in April 1984. Plaintiff exhibited moderate paravertebral spasm in the lumbar area and limited straight-leg raising. X-rays indicated degenerative changes near the L5 disc. Nonetheless, Dr. Sharma concluded that plaintiff had no functional limitations (Tr. at 149-51). Dr. Chen, a non-examining review physician, completed a residual functional analysis form based on Dr. Sharma's report. He concluded that plaintiff could sit and stand six hours in an eight-hour workday, and could lift frequently only ten pounds (Tr. at 152-54).

 In a report dated October 31, 1984, Dr. Fitzgerald again opined that plaintiff was totally disabled. He noted that plaintiff exhibited persistent chronic paraspinal muscle spasm in the L2 to L4 region. Dr. Fitzgerald completed a "Physical Capacities Evaluation" in which he indicated that plaintiff could sit and walk for only one hour in an eight-hour workday, and should do no lifting (Tr. at 155-56).

 Dr. Bloch, one of plaintiff's two treating physicians found that plaintiff was suffering from "severe radiculopathy." Dr. Bloch noted that plaintiff is unable to lift heavy objects and cannot sit or stand for extended periods. Dr. Bloch concluded that plaintiff was totally disabled. In a report dated October 31, 1984, Dr. Memoli, plaintiff's other treating physician, diagnosed plaintiff's condition as a "probable midline herniated nucleus pulposis" in the L3-4 region, with an onset date of June 20, 1983. He noted that plaintiff was exhibiting paraspinal muscle spasms, diminished knee reflexes, and a restricted ...


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