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ODORIZZI v. SULLIVAN

October 21, 1993

IDA ODORIZZI, executrix of the estate of Enrico Odorizzi, Plaintiff,
v.
LOUIS W. SULLIVAN, M.D., SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.



The opinion of the court was delivered by: EUGENE H. NICKERSON

 NICKERSON, District Judge:

 Enrico Odorizzi (hereafter "plaintiff") brought this action under 42 U.S.C. § 405(g) seeking judicial review of the final decision of defendant Secretary of Health and Human Services (the Secretary) to discontinue plaintiff's disability benefits under the Social Security Act, 42 U.S.C. §§ 301 et seq. Both parties moved pursuant to Fed. R. Civ. P. 12(c) for judgment on the pleadings. Plaintiff died on September 7, 1992, and his wife was substituted as plaintiff approximately one year later.

 I

 The only significant issue is whether the opinion of plaintiff's treating physician that he is totally disabled has been refuted by substantial evidence.

 The following facts are not disputed.

 Plaintiff was a naturalized U.S. citizen who was born in Italy in 1933 and immigrated to the United States in 1954. He received a fifth grade education in Italy. At the time he applied for disability benefits he spoke English fairly well, could read to some extent, but could not write English at all. He worked as a carpenter for the same company for some twenty-five years, from 1956 until March 18, 1981. His job required him to carry or help to carry heavy objects, such as 200-pound beams, to be on his feet all day, to bend, and to climb as many as fifteen flights of stairs a day. While at work on March 18, 1981, plaintiff fell from a scaffold ten to fifteen feet above the ground and was knocked unconscious.

 Plaintiff was hospitalized from March 18 until March 20, 1981, and diagnosed with a concussion, discoloration of his right eye socket, a nondisplaced interarticular fracture of his right wrist (for which he was given a short arm cast), and high blood pressure. He was hospitalized a second time, from April 6 until April 15, 1981, for a skull fracture and fracture of the right wrist. On April 19, 1981 plaintiff went to an emergency room complaining of severe recurrent low back pain. He was hospitalized for a third time, and discharged on April 22, 1981 with a diagnosis of right renal colic.

 Plaintiff was hospitalized a fourth time from May 1 until May 4, 1981, after complaining that he had been vomiting for three days. His fifth hospitalization was from July 17 until August 21, 1981, during which his spleen and a mass on his pancreas were removed. He was hospitalized for a sixth time from November 3 until November 19, 1981, this time for acute pancreatitis that had been triggered by increased alcohol intake.

 Plaintiff applied to the Social Security Administration (the Administration) for Social Security disability benefits on April 12, 1982. The Administration denied his application initially and on reconsideration. Plaintiff requested a hearing before an administrative law judge. After a hearing held on October 4, 1982 Administrative Law Judge Lawrence P. Ashley (the ALJ) awarded plaintiff a closed period of disability from March 18, 1981 through May 31, 1982.

 The ALJ based his finding of disability on all of plaintiff's injuries and symptoms. His finding was not that plaintiff suffered from a single impairment that qualified as a total disability, see 20 C.F.R. § 404.1520(d), but rather that plaintiff's impairments combined with his age and vocational background rendered him unable to engage even in sedentary work during the period of disability. See 20 C.F.R. § 404.1545. Sedentary work requires an individual to lift no more than ten pounds at time, to spend most of the work day sitting, and to stand and walk long enough to carry out job duties. 20 C.F.R. § 404.1567(a).

 The ALJ found plaintiff to be capable of performing light work as of June 1, 1982. Light work requires an individual to lift no more than twenty pounds at a time, to lift and carry ten-pound objects frequently, to be able to walk or stand for substantial periods, and to be able to push and pull leg and arm controls. 20 C.F.R. § 404.1567(b).

 Plaintiff was again hospitalized from November 16 until December 2, 1982. He underwent lumbar traction after his condition, diagnosed and confirmed by EMG as a herniated disc at L4-L5, failed to improve with bed rest.

 On December 27, 1982 plaintiff sought Appeals Council review of the ALJ's decision that he was no longer disabled after May 31, 1982. The Appeals Council denied review, and plaintiff brought an action for judicial review.

 By Memorandum and Order dated September 21, 1984, then District Court Judge Joseph M. McLaughlin found that the ALJ's finding of no disability after May 31, 1982 was not supported by substantial evidence, and remanded the case with instructions to conduct a rehearing and to apply the medical improvement standard of De Leon v. Secretary of Health and Human Services, 734 F.2d 930 (2d Cir. 1984). Under De Leon, "the Secretary may terminate benefits to a person previously adjudged to be disabled only upon substantial evidence that the individual's condition has improved to the point that he or she is no longer disabled, or that the initial finding of disability was erroneous." Id. at 936.

 On October 6, 1987, three years after the remand, a second ALJ reheard plaintiff's claim. The record does not reveal the reason for the lengthy delay. The ALJ determined that the impairment afflicting plaintiff as of May 1982, the latest time the Administration considered plaintiff disabled, was a herniated disc. It was undisputed that plaintiff's other injuries, including his wrist and skull fractures and his damaged spleen and pancreas, had improved by May 31, 1982.

 The ALJ's questions to plaintiff and the medical advisor Dr. Gilbert Young focused on whether plaintiff's back condition met or equalled a listed impairment. The listed impairment most relevant to plaintiff's condition is 20 C.F.R. Pt. 404, Subpt. P. App. 1, 1.05(c):

 
Other vertebrogenic disorders (e.g., herniated nucleus puplosus [sic], spinal stenosis) with the following persisting for at least 3 months despite prescribed therapy and expected to last 12 months. With both 1 and 2:
 
1. Pain, muscle spasm, and significant limitation of motion in the spine, and

 At the hearing plaintiff testified that he wished he could work, that pain prevented him from doing so, that since his accident he had been unable to sleep at nights, and that he took sleeping pills prescribed by his doctor. His activities consisted of watching television, driving two blocks to a park, and driving two blocks to pick up his wife from a supermarket when she was done shopping. He was unable to go out for more than one hour without lying down due to pain.

 Dr. Young neither examined nor treated plaintiff. His testimony was based on plaintiff's medical records. Dr. Young's function as non-examining medical advisor was "to explain complex medical problems in terms understandable to lay examiners." Vargas v. Sullivan, 898 F.2d 293, 295 (2d Cir. 1990). Dr. Young testified that he found "a great discrepancy in the medical evidence." He noted that of five doctors who had "followed" plaintiff, only one, plaintiff's treating neurologist Dr. Morton Finkel, diagnosed plaintiff with lumbar herniated nucleus pulposus. Dr. ...


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