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August 15, 1991


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 substantial evidence.


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).


A. Medical Evidence

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.

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. 91, 94.

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 ...

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