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LAPORTA v. BOWEN

May 14, 1990

VINCENT LAPORTA, PLAINTIFF,
v.
OTIS R. BOWEN, M.D., SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT.



The opinion of the court was delivered by: McAVOY, District Judge.

ORDER

This matter originally referred to the late United States Magistrate Conan pursuant to 28 U.S.C. § 636(b) and Local Rule 44(F), was subsequently referred to Magistrate Gustave J. Di Bianco for report and recommendation by this Court by Standing Order dated March 22, 1984.

This court adopts the facts contained within defendant's "Statement of the Case" as did the Magistrate with any exceptions as noted, and to the extent that they are consistent with the Report-Recommendation.

On February 8, 1989 Magistrate Di Bianco issued a report recommending that a remand for further proceedings is required because the Secretary did not correctly evaluate plaintiff's residual functional capacity. Upon a review of the entire record in this case, including the plaintiff's objections to the magistrate's report-recommendation, the petition, and the Secretary's memorandum of law in support of his motion for judgment on the pleadings, the court agrees with the Magistrate's recommendation for the reasons stated therein.

A determination that a person can work is predicated upon a finding of residual functional capacity (RFC), which must be established by demonstrating by substantial evidence each of the criteria of the physical requirements in the regulations. Benko v. Schweiker, 551 F. Supp. 698, 705 (D.N.H.1982). The Secretary must consider objective medical facts, diagnoses and medical opinions based on such facts, and subjective evidence of pain or disability testified to by the claimant and others. Ferraris v. Heckler, 728 F.2d 582, 585 (2nd Cir.1984). In assessing RFC, the Secretary must make findings specifying what functions plaintiff is capable of performing, not simply making conclusory statements regarding plaintiff's capacities.

In the instant case, the ALJ found plaintiff capable of performing light work. (Tr. at 9, 10). However, the ALJ failed to show by substantial evidence that plaintiff can perform each of the requirements of light work as set forth in 20 C.F.R. § 404.1567(b). Therefore, upon remand, the ALJ must specifically state what requirements of light work plaintiff is capable of doing and the basis for his determination.

REPORT AND RECOMMENDATION

This matter, assigned to the Honorable Thomas J. McAvoy, United States District Judge, was originally assigned to the late Magistrate Conan pursuant to 28 U.S.C. § 636(b) and Local Rule 44(F), subsequently referred to the undersigned and has proceeded in accordance with a Standing Order of this Court dated March 22, 1984, setting forth the procedure to be followed in such appeals from a denial of Social Security benefits. Briefs were filed by the parties, but no oral argument was held.

FACTS

This court adopts the facts contained within defendant's "Statement of the Case" with any exceptions as noted, and to the extent that they are consistent with this Report-Recommendation.

CONTENTIONS

Plaintiff makes the following claims:   1) the Administrative
Law Judge (ALJ) failed to apply the correct legal standard in
considering plaintiff's allegations of disabling pain,   2) the
residual functional capacity determination that plaintiff can do
light work is erroneous; and   3) there is new evidence, which
was not available at the Administrative Hearing, to support
plaintiff's request for a remand.

Defendant opposes plaintiff's claims on all issues and contends that the ALJ's decision was supported by substantial evidence. Additionally, defendant argues that the new evidence submitted by plaintiff does not meet the requirements of 42 U.S.C. § 4O5(g).

This court finds that a remand for further proceedings is required because the Secretary did not correctly evaluate plaintiff's residual functional capacity.

DISCUSSION

1. Pain and ...


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