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MURPHY v. SECRETARY OF HHS

December 11, 1994

JOHN T. MURPHY, Plaintiff, against SECRETARY OF HEALTH AND HUMAN SERVICES.


The opinion of the court was delivered by: JOANNA SEYBERT

 SEYBERT, District Judge:

 This action is brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Secretary of Health and Human Services (the "Secretary") that denied plaintiff's application for disability insurance benefits under the Social Security Act (the "Act"). Both plaintiff and the Secretary have moved for judgment on the pleadings pursuant to Fed. P. Civ. P. 12(c). Plaintiff argues that the Secretary failed to describe with specificity the reasons why plaintiff's claimed disability did not fall within the type of impairments automatically entitling plaintiff to disability benefits. That failure, plaintiff asserts, requires reversal of the Secretary's decision and remand for calculation of benefits. Alternatively, plaintiff claims that the Secretary failed fully to develop the medical evidence and that, accordingly, the case should be remanded for further development of the record. In its cross-motion, the Secretary argues that its decision was based upon substantial evidence and that the Court must affirm the Secretary's final determination.

 BACKGROUND

 Plaintiff John T. Murphy is a 43-year old male born on February 27, 1951. (Administrative Record ("R.") at 22, 51.) Murphy filed for disability insurance benefits on November 27, 1991, alleging that a knee injury and a breakdown of his artificial hip rendered him incapable of engaging in any substantial gainful activity after February 27, 1991. (R. at 51, 81.)

 The record reflects that Murphy was struck by a five-ton truck at the age of ten. (R. at 81.) As a result of the accident, Murphy required surgery at age seventeen to replace his right hip. After the surgery, Murphy's right leg was four and one-half inches shorter than his left, and his right knee was two inches smaller than his left. (R. at 99.) The surgery was unable to alleviate the recurring pain Murphy alleges he feels in his hips, legs, and back. (R. at 9, 29.) Indeed, Murphy claims in his written application for disability benefits that the pain escalated following the hip replacement and that he now experiences constant pain. (R. at 35, 81.)

 Murphy completed school through the ninth grade. (R. at 27, 85.) In addition to various odd jobs, Murphy worked steadily as a dispatcher for an auto body and towing company from 1983 to 1984 and from 1986 to 1991. (R. at 28, 85, 86.) As a dispatcher, Murphy monitored incoming phone calls and dispatched toll trucks to the police department. (R. at 29.) Murphy voluntarily stopped working in February 1991 after his duties were altered to include walking back and forth to inspect cars and trucks brought into the shop. (R. at 30.)

 Murphy underwent an examination by Dr. K. Seo, an impartial consultant, on January 10, 1992 in order to facilitate the processing of his disability request. Dr. Seo concluded that Murphy had a right total hip replacement and a left hip nailing for slipped femoral epiphysis and that "functionally, patient may be able to stand and walk for 30 minutes and carry 20 lbs." (R. at 100.) Seo made no mention of plaintiff's ability to sit. (R. at 98-100.)

 Plaintiff's application for disability benefits was both denied initially (R. at 64) and on reconsideration (R. at 71). Plaintiff then requested a hearing regarding his application, which was held before administrative law judge Sol A. Wieselthier (the "ALJ") on June 18, 1992.

 At the hearing, Murphy testified that his right hip is "numb basically all the time now." (R. at 34-35.) He also indicated that he can only sit for about 20-30 minutes at a time (R. at 39), walk, with the help of a cane, at most one or two blocks (R. at 37) and stand for no more than one-half hour before feeling considerable pain in his knees and right hip (Id.). Murphy did state that he could lift up to 25 pounds without a problem. (R. at 40.) Despite his alleged persistent pain, Murphy has not received since his surgery any additional medical treatment of the injuries he endured from the accident. (R. at 20, 45, 47.) Murphy did indicate, however, that in order to become eligible to receive welfare benefits in 1991, he was examined by HS Systems, a group of welfare consultative physicians located in New York City. (R. at 32, 49.)

 In an opinion rendered on December 17, 1992, the ALJ found that although Murphy "has impairments that affect his ability to perform work related activity" (R. at 12), he "retains the residual functional capacity to perform his past relevant work" and thus was "not under a 'disability' as defined in the Social Security Act" (R. at 9). Relying heavily on Dr. Seo's report, the ALJ held that Murphy's complaints were not consistent with the medical evidence and concluded that Murphy could continue to work as a dispatcher. (R. at 9, 13.) On April 30, 1993, the Appeals Council denied plaintiff's request for a review (R. at 2-3), and this action followed.

 DISCUSSION

 The legal principles governing the Court's decision on the instant motions are well settled. A claimant is entitled to disability benefits under the Act if he is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A) (1988); see also Wagner v. Secretary of Health and Human Serv., 906 F.2d 856, 860 (2d Cir. 1990). The presence of an impairment is thus not in and of itself disabling within the meaning of the Act. See Spears v. Heckler, 625 F. Supp. 208, 210 (S.D.N.Y. 1985).

 The Secretary has promulgated regulations establishing a framework in which to evaluate disability claims. See 20 C.F.R. §§ 404.1520, 416.920 (1994). Essentially, a five-step analysis of ...


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