The opinion of the court was delivered by: Curtin, District Judge.
This action is brought under 42 U.S.C. § 405(g) to review the
final decision of the Secretary of Health and Human Services
[the Secretary] finding claimant "not disabled" under the
Social Security Act [the Act] and denying him Supplementary
Security Income [SSI]. Currently pending is defendant's motion
for judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure. Claimant seeks reversal of
the Secretary's decision, claiming it is not supported by
Claimant Walter Hill is a Tuscarora Indian born in Oshewken,
Ontario. He was 3 months and 2 days shy of age 55, which is
classified as advanced age, on the day of the April 12, 1989,
hearing. He has not engaged in substantial gainful activity
since May 20, 1988, at which time he filed for SSI benefits
alleging a back problem dating back to 1980, arthritis, and
asthma (Item 5, pp. 56, 89). His application was denied
initially and upon reconsideration. Id., pp. 60-62, 70-72. Upon
request, plaintiff was granted a de novo hearing before an
Administrative Law Judge [ALJ] on April 12, 1989, where he
testified and was represented by Richard Ippolito, Esq. Id.,
pp. 21-55. The ALJ found plaintiff not disabled in her decision
of July 27, 1989, and this was upheld as the Secretary's final
decision when the Appeals Council denied plaintiff's request
for further review. Id., pp. 2-3. This action was filed in
district court on December 4, 1989 (Item 1).
The medical evidence includes three reports, two of which
overlap in time. First is the Erie County Health Department
[ECHD]/Jesse Nash Family Health Center report dated November
21, 1988, covering the time from October 7, 1987 to November
27, 1988. Next is a November 28, 1988, report from Buffalo
General covering the time period November 12, 1987 to November
17, 1988, and including notations by Drs. Mayo, Phillips and
Berens. Finally, there is Dr. Friedland's report of December
28, 1988, which refers to the radiology report of Dr. Favorito.
Claimant also testified at the hearing.
The record shows claimant was first seen at the ECHD on
October 7, 1987, complaining of intermittent back pains which
had persisted for the last five years but had been particularly
problematic during the previous week. Essentially, he sought
pain killers for this condition, specifically Tylenol with
codeine which he had used for the
last several years under a prescription provided by his doctor
in Canada. Claimant requested and was given physical and
neurological examinations at ECHD, which proved negative and
attested to his excellent health (Item 5, pp. 89-90). ECHD
scheduled an appointment for claimant at Buffalo General's
Orthopedic Clinic on November 12, 1987, and December 3, 1987,
which he missed. During claimant's routine visit on December
21, 1987, he complained of worsening back pain. ECHD
rescheduled his appointment at the Orthopedic Clinic for
January 18, 1988, specifically suggesting a back brace and
physical therapy. At ECHD he also received additional
medication for his asthma/emphysema and arthritis condition.
Id., pp. 90-91, 107.
Claimant next made an informal visit to ECHD on December 30,
1987, where a back brace was discussed again. On February 2,
1988, he made another routine visit to ECHD, where tests
results were discussed and his prescriptions were refilled. The
record shows his final visit to ECHD was on November 27, 1988,
where claimant's persistent back pain was noted. He was
directed to continue treatment at Buffalo General Hospital's
[Buffalo General] Orthopedic Clinic, his medical prescription
was renewed, and he was instructed to return for a routine
visit in three months. Id., pp. 92-93. A final report dated
December 9, 1988, diagnosed degenerative lumbar spine with a
poor prognosis, and recommended Motrin medication. Id., p. 115.
After his first visit to ECHD in October 1987, claimant was
referred to Buffalo General for treatment of his back pain.
Id., p. 101. He was examined at the Orthopedic Clinic on
November 12, 1987, by Dr. Elbert W. Phillips, who found minimal
osteophytosis at L3-L4 and L4-L5 as well as degenerative disc
disease at L4-L5 and possible L5-S1. Id., pp. 110-111. Claimant
had toe/heel walking difficulty. Dr. Phillips prescribed
Ventolin for claimant's asthma/emphysema condition. Id., pp.
On December 12, 1988, Dr. David L. Berens diagnosed
degenerative arthritis of the lowest zygapophyseal and possible
degenerative disc disease, but there was little if any internal
change when compared with examinations conducted on November 12
and 18, 1988. Id., p. 103.
Finally, claimant was examined once by Dr. Elmer Friedland,
who reported his findings on December 28, 1988. Dr. Friedland
diagnosed claimant to have moderate osteoarthritis of the
lumbar spine, symptomatic with 40 percent limitations of
motions and pulmonary emphysema,*fn1 with mild impairment of
ventilation. Dr. Friedland also found claimant to be 25 pounds
underweight. Still, he generally found claimant in good health
and able to lift 40 pounds and to take care of all of his
needs. Id., pp. 122-125.
Dr. Friedland referred to the radiology report made by Dr.
Alfredo Favorito of the Delaware Radiological Center in
Buffalo. Dr. Favorito's examination concluded claimant's
condition showed moderate changes of the lower lumbar
spondylosis consistent with degenerative disc disease.
Id., p. 126. He reported claimant had increased bone density
within the body which could be from either an old trauma or
localized changes of Paget's*fn2 disease. Id., p. 116.
B. Education and Work History
Claimant was born October 29, 1934 and was 54 years, 8
months, and 28 days at the time of the April 12, 1989, hearing.
Educationally, he reached 12th-grade standing in Canada through
an equivalency diploma. He is a veteran, having served in the
military from 1957-1960. Id., p. 122. Following his discharge,
he went to school for welding in 1960. His testimony at the
hearing indicates he worked back and forth across ...