Plaintiff's vocationally relevant past work experience include
being a janitor, a machine helper, a meat inspector, a sorter,
and a spray paint helper. These past jobs were exertionally
light in nature.
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 laundromat,
and shops once a month. Plaintiff has used a cane most of his
A review of the factual determinations of the Secretary is
limited to a determination of whether those findings are
supported by substantial evidence or are based on legal error.
Aubeuf v. Schwerker, 649 F.2d 107, 112 (2d Cir. 1981);
Marcus v. Califano, 615 F.2d 23 (2d Cir. 1979). Substantial
evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion."
Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420,
1427, 28 L.Ed.2d 842 (1971). "A court should consider the
following as an aid in such an evaluation: (1) the clinical
findings of treating and examining physicians; (2) the
diagnoses of these physicians; (3) the subjective evidence of
pain and disability as testified by the plaintiff and as
observed by others; and (4) the [plaintiff's] educational
background, work history, and present age." Whitney v.
Schweiker, 695 F.2d 784 (7th Cir. 1982).
Where, as here, the Appeals Council has reversed the decision
of the ALJ granting benefits, the Seventh Circuit has recently
held that the reviewing court has "an obligation to determine
whether the own motion review conducted by the Appeals Council
was in fact justified under the standard by which the Council
justified it in theory." Scott v. Heckler, 768 F.2d 172, 178
(7th Cir. 1985). Here the Appeals Council decided that the
ALJ's decision was not supported by substantial evidence. Thus,
this Court must determine whether the Secretary's decision to
conduct own motion review based on the condition that the ALJ's
award was not supported by substantial evidence was correct.
In this case, the Appeals Council found that the plaintiff's
condition did not meet the Appendix 1 Listing of Impairments
§ 1.03, despite the fact that the ALJ found that the November
6, 1981 x-rays of the plaintiff's right hip demonstrated that
he did meet the § 1.03 requirements.*fn1
Under the Listing of Impairments § 1.03, a severe impairment of
the musculo-skeletal system will be found if there is evidence
of "[a]rthritis of a major weight-bearing joint (due to any
cause) with limitation of motion and enlargement or effusion in
the affected joint, as well as a history of joint pain and
stiffness. [Also] [w]ith . . . gross anatomical deformity such
as subluxation, contracture, bony or fibrous ankylosis or
instability. . . ." 20 C.F.R. Part 404, Subpart P, Appendix 1,
§ 1.03 (1954).
The Appeals Council found plaintiff's condition did not meet
the standards of § 1.03 in that the record did not "establish
the existence of significant limitation of motion, joint
stiffness, enlargement, effusion or loss of full weight
bearing" (R. 10). Plaintiff's contention is that the Appeals
Council applied an erroneous standard in that § 1.03 does not
require "significant" limitation of motion, a showing of
enlargement and effusion, or "loss of full weight bearing."
Plaintiff also contends that the focus of both the Magistrate's
and Appeals Council's conclusion was on the absence of
"enlargement or effusion." The Magistrate also found that
"[w]hile Plaintiff's condition does meet some aspects of §
1.03, the criteria of enlargement or effusion of the hip, and
stiffness, are clearly lacking in the evidence."
This Court disagrees with the conclusion of both the Magistrate
and the Appeals Council that the clinical evidence does not
support a finding of enlargement of the hip joint. The November
7, 1981 x-ray report specifically provides:
RIGHT HIP: There is severe osteoarthritis seen at the right hip
with marked narrowing and erosions at the acetabular joint.
There is severe aclerosis seen at the superior portion of the
acetabular articulating surface as well as moderate ossified
formation at the superior margin. The femoral head appears
markedly deformed and eroded.
(Emphasis added.) If an "ossified formation at the superior
margin" does not constitute an enlargement of the hip, the
Appeals Council has the obligation to explain to this Court why
it does not and to define what is meant by the term
"enlargement." So far as this Court can determine that term is
not defined anywhere in the regulations.