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March 23, 1982


The opinion of the court was delivered by: Foreman, Chief Judge:


Plaintiff instituted this action pursuant to 42 U.S.C. § 405 (g)(1981), to review the final decision of the Secretary of Health and Human Services (the Secretary) denying his application for disability insurance payments. Section 405(g) provides that this Court has the power to enter, upon the pleadings and transcript of the record, a judgment, affirming, modifying or reversing the decision of the Secretary, with or without remanding the case for a rehearing. Plaintiff filed his complaint on May 26, 1981. Defendant filed his answer, which includes a copy of the administrative transcript, on August 11, 1981. Accordingly, this Court will proceed on the merits of the case.



Plaintiff is a forty year old male, married with dependents living at his home. He has never attended school, nor has he received vocational training. He is totally illiterate. He cannot read and cannot write beyond signing his own name. His past work experience has been unskilled heavy labor. In 1967, while working for a furniture company, plaintiff was injured when a piano fell on his back, thereby fracturing his vertebrae. He was not hospitalized for this condition, but had to use a brace for a substantial period of time. In October 1978, plaintiff reinjured his back when he fell at work. He was not hospitalized for this condition, but had to use crutches for three weeks. Plaintiff has not worked since this accident.

On December 21, 1979, plaintiff applied for Supplemental Security Income benefits (SSI) on the basis of his disability. His initial application was denied and a request for reconsideration was filed on February 26, 1980. On reconsideration, the Social Security Administration affirmed its denial of the claim, finding that the claimant was not disabled under 42 U.S.C. § 423(d), which provides:

(d)(1) The term "disability" means —

    (A) inability 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 . . .
    (2) For purposes of paragraph (1)(A) ___ (A) an
    individual . . . shall be determined to be
    under a disability only if his physical or
    mental impairment or impairments are of such
    severity that he is not only unable to do his
    previous work but cannot, considering his age,
    education and work experience, engage in any
    other kind of substantial gainful work which
    exists in the national economy, regardless of
    whether such work exists in the immediate area
    in which he lives, or whether a specific job
    vacancy exists for him, or whether he would be
    hired if he applied for work . . .
    (3) For purposes of this subsection, a
    "physical or mental impairment" is an
    impairment that results from anatomical,
    physiological, or psychological abnormalities
    which are demonstrable by medically acceptable
    clinical and laboratory diagnostic techniques.

On April 8, 1980, plaintiff requested a hearing, which was subsequently held on May 8, 1980, before Administrative Law Judge (ALJ) Tom D. Capshaw. Plaintiff was not represented by counsel at this hearing. Subsequent to the hearing, the ALJ referred plaintiff to a consultive orthopedic surgeon, Dr. Willis Pugh, whose report was received into evidence on June 25, 1980.

The ALJ found by order dated July 29, 1979, that plaintiff is illiterate and that his past work history involved heavy unskilled labor; that he suffers degenerative arthritis of the lumbar and thoracic spine, lumbo-sacral sprain, and osteoarthritis of the hands; that he is unable to perform his past relevant work but retains adequate residual functional capacity to perform at least sedentary work; and that he is not disabled according to 20 C.F.R. § 416.913 (1981) and 20 C.F.R., subpart P, Table No. 1 of Appendix 2, Rule 201.23 (hereinafter Appendix 2, Table No. 1).

Plaintiff timely filed a request for review by the Appeals Council. A memorandum was submitted by plaintiff's treating physician, Dr. Arcuino, together with additional medical evidence and an affidavit in support of plaintiff's claim for review.

On April 13, 1981, the Appeals Council denied plaintiff's request for review on the grounds that there was no basis for granting the request for review under Section 416.1470 of Social Security Administration regulations No. 16, 20 C.F.R. § 416.1470, which provides:

  (a) The Appeals Council will review a case if
  (1) There appears to be an abuse of discretion by
  the administrative law judge;

(2) There is an error of law;

  (3) The action, findings or conclusions of the
  administrative law judge are not supported by
  substantial evidence; or
  (4) There is a broad policy or procedural issue
  that may affect the general public interest.
  (b) If new and material evidence is submitted
  with the request for review, the Appeals Council
  shall evaluate the entire record. It will then
  review the case if it finds that the
  administrative law judge's action, findings, or
  conclusion is contrary to the weight of the
  evidence currently in the record.

Accordingly, the Appeals Council's denial of plaintiff's request for review became the final decision of the Secretary. Within the time period prescribed by 42 U.S.C. § 405, plaintiff instituted the present action.


Plaintiff began treatment with Dr. Jerry Felts, a chiropractor, in March of 1979. He has continued this treatment to the present time, meeting with Dr. Felts a minimum of two to three times a week. Dr. Felts diagnosed plaintiff's condition as chronic lumbosacral involvement with the entire lumbar spine rotation and narrowing of the L-1, L-2, and L-3 disc spaces. Dr. Felts also found that plaintiff's range of motion in the lumbar spine was restricted in extension, flexion, lateral rotation and in bending of the legs; concluding that plaintiff will receive only symptomatic response and will always have chronic back problems and should be considered for total disability.

Plaintiff was informed by the Social Security Office that Dr. Felts' information was insufficient to support his application for benefits. Accordingly, plaintiff went to see Dr. H. Andrew Cserny, a physician, in January of 1980. Dr. Cserny's examination of plaintiff was cursory. He merely talked to the plaintiff, asked him to bend over, and tested his reflexes. Dr. Cserny found that plaintiff suffered from chronic back strain and pain in his lower back, that plaintiff's reflexes and ambulation were normal and that there was no indication of atrophy. Dr. Cserny reported that the straight leg raising test was normal to 90°, the range of motion of the cervical spine was normal and the range of motion of the lumbo-sacral spine was limited to 75° flexion and 15° extension. Paravertebral muscle spasms were not noted. On the Physical Capacities Evaluation (supplied by the Social Security Office), Dr. Cserny indicated that plaintiff was capable of performing light work and that he could climb, bend, stoop and operate foot controls frequently. On his report, Dr. Cserny noted that "this man needs evaluation by an orthopedic surgeon." (Tr. 120).

In February of 1980, plaintiff began seeing Dr. Arcuino, who continues to be his treating physician. In a report dated May 2, 1980, Dr. Arcuino described plaintiff's condition as recurrent lumbo-sacral pain, since 1965, which is aggravated by lifting and bending. Moderate tenderness was found in the lumbo-sacral spine area and straight leg raising was limited to 20° bilaterally with pain. Deep tendon reflexes were hyperactive and the sensations were found to be intact. An x-ray examination of the lumbo-sacral spine on February 20, 1980, revealed moderate dextroscoliosis and hypertrophic osteoarthritic spurring. Dr. Arcuino diagnosed his condition as chronic lumbo-sacral sprain with intermittent acute exacerbation secondary to osteoarthritis.

Plaintiff was referred by the Social Security Administration to Dr. Willis Pugh, a Board certified specialist of orthopedic surgery. A consultative examination took place on May 28, 1980, during which Dr. Pugh found 50% restricted flexion of the thoracic and lumbar spine, about the same of the extension of the lumbar spine, that plaintiff walked with his back in a mildly stooped position and complained of pain in the lower back, as well as in the lower thoracic and upper lumbar region, and that plaintiff's reflexes were normal. X-rays were taken of the lumbar spine (multiple views) and additional views were also taken of the lower thoracic and upper lumbar region. The x-rays revealed an old compression fracture with moderately advanced degenerative arthritic changes and also advanced arthritic changes about the rest of the lumbar spine. Dr. Pugh found some osteoporosis present. The lumbo-sacral joint region showed some increase in the lumbo-sacral angle, with very mild osteoporosis, but revealed about 25% narrowing of the lumbo-sacral joint space due to degenerative arthritis.

Dr. Pugh also noted that plaintiff complained of pain in both hands and of tenderness about the distal interphalangeal joints of his fingers, especially on his left hand. Dr. Pugh found large Heberden's nodes about the distal interphalangeal joints of his fingers.

Dr. Pugh diagnosed plaintiff's condition as moderately advanced degenerative arthritis of the lower thoracic and lumbar spine, with degenerative arthritis or osteoarthritis involving the hands. He further stated:

  This patient, in my opinion, is disabled for
  doing strenuous physical exertion such as
  pushing, pulling or being on his feet for very
  long periods of time, or for lifting or bending
  and stooping, or for sitting for very long
  periods. He also has difficulty using his hands
  for very long periods of time or doing finer
  movements due to the changes in his
  interphalangeal joints. The prognosis for
  improvement, I would think, would be very poor
  (Tr. 132).


After reviewing the record, this Court believes that the ALJ's decision was supported by substantial evidence based on the record as a whole. Therefore, plaintiff's request to reverse the Secretary's decision is hereby DENIED. However, sometime after the hearing, plaintiff submitted new evidence which the Appeals Council did not give sufficient consideration. Accordingly, this Court ...

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