The opinion of the court was delivered by: Rovner, District Judge.
MEMORANDUM OPINION AND ORDER
This is an action pursuant to 42 U.S.C. § 405(a) for judicial
review of a final decision of the Secretary of Health and Human
Services ("the Secretary") denying the plaintiff's applications
for the establishment of a period of disability, disability
insurance benefits and supplemental security income ("SSI")
under the Social Security Act, 42 U.S.C. § 416(i), 423, and
1381, et seq. Presently pending before this Court is the
statement of exceptions of plaintiff Eddie Ward to the report
and recommendations of Magistrate James Balog entered on
December 12, 1984. Magistrate Balog, in considering the
parties' cross-motions for summary judgment, recommended that
the plaintiff's motion for summary judgment be denied and that
the decision of the Secretary be affirmed.
The Court has conducted a de novo review of the entire
administrative record before Administrative Law Judge Larry M.
Miller ("ALJ") including the transcript of the oral hearing,
all of the exhibits and medical evidence, the decisions of the
ALJ and of the Appeals Council, and the pleadings and briefs
filed by both parties. For the reasons stated herein, the Court
is satisfied that plaintiff's statement of exceptions to the
Magistrate's Report and Recommendation is well-taken.
Accordingly, plaintiff's motion for summary judgment is granted
and the Secretary's motion is denied.
On June 23, 1981, plaintiff applied for disability insurance
benefits and SSI, alleging that he became disabled and unable
to work as of October 17, 1979. His applications were denied
initially and upon reconsideration. On February 17, 1982,
plaintiff requested a hearing before an ALJ which was held on
August 11, 1982. The ALJ found on August 25, 1982 that
plaintiff was disabled as of November 6, 1981 and thus entitled
to a period of disability, disability insurance benefits, and
SSI. Plaintiff disagreed with the ALJ's decision as to the
onset date of his disability and thus requested the Office of
Hearings and Appeals to review the issue of onset date.
On August 24, 1983, the Appeals Council decided that the ALJ's
findings were not supported by substantial evidence and
reversed his decision, finding plaintiff not disabled. This
decision became the final decision of the Secretary. Plaintiff
then filed this action for judicial review, and the case was
referred to Magistrate James T. Balog for a report and
recommendation on plaintiff's and defendant's cross-motions for
The Magistrate filed his Report and Recommendation on December
12, 1984. He recommended that the government's motion for
summary judgment be granted and the decision of the Secretary,
denying plaintiff's applications for disability and SSI, be
Plaintiff has suffered from polio affecting his right leg and
hip since he was six years old. He had corrective surgery on
his hip three times. Nevertheless, he refused an artificial hip
replacement for fear the operation would render him unable to
walk at all. Plaintiff testified that his hip and legs have
been in constant pain all his life, that his pain has "[gotten]
worse," and that it continues to "get worse." He can sit for no
more than two hours at a time, after which he must rise to
loosen his leg to relieve the pain. He also takes medication to
relieve the pain, after which he must lay down. In addition to
these problems, plaintiff lost the sight of his left eye when
he was fourteen. Plaintiff also suffers from arthritis in the
left shoulder and has complained of bad chest pains.
In June of 1981, plaintiff was hospitalized for a dislocation
of the right hip. X-rays of his right hip revealed a marked
deformity of the right hemi-pelvis, a dislocation of the right
hip with pseudo-acetabulum formation, severe degenerative
arthrosis of the head and neck, a protrusion of the right
hemi-pelvis, moderate deformity of the iliac wing with
sclerosis near the sacroiliac joint, and scoliosis and
degenerative arthrosis of the lumbar spine.
On November 6, 1981 plaintiff was given a consultative
examination. X-rays of the right hip showed severe
osteoarthritis of the right hip with marked narrowing and
erosion of the acetabular joint. Also shown was severe
sclerosis at the superior portion of the acetabular
articulating surface as well as moderate ossified formation of
the superior margin. The examination further revealed a shorter
right leg length as compared to the left leg, a limitation of
range of motion of the right hip, and a limitation of full
extension of the right knee.
Plaintiff lived by himself for the eight months preceding the
ALJ's hearing. Prior to that time, he lived with his niece for
two years, and for the prior six years, he also lived by
himself. Plaintiff testified that he cleans, sweeps, and mops
his two and one-half room apartment, goes to the ...