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JABCZYNSKI v. SHALALA

March 31, 1995

KENNETH JABCZYNSKI, Plaintiff,
v.
DONNA E. SHALALA, Secretary of Health and Human Services, Defendant.



The opinion of the court was delivered by: ELAINE E. BUCKLO

 Plaintiff, Kenneth Jabczynski ("Mr. Jabczynski"), applied for a period of disability, Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") on May 16, 1991. His claim was denied initially and upon reconsideration by State agency personnel. After a hearing, Administrative Law Judge ("ALJ") Larry M. Miller found that Mr. Jabczynski retained the residual functional capacity for light work not involving standing or walking more than two hours intermittently in an eight hour day or stooping, crouching and climbing more than occasionally. The Appeals Council denied Mr. Jabczynski's request for review. Consequently, the ALJ's decision became the final decision of the Secretary of Health and Human Services ("Secretary"). 20 C.F.R. § 404.981; Herron v. Shalala, 19 F.3d 329, 332-33 (7th Cir. 1994) (citation omitted). On November 26, 1993, Mr. Jabczynski brought the present action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the final decision of the Secretary. Both parties have filed motions for summary judgment. For the reasons set forth below, both parties' motions for summary judgment are denied, and this case is remanded to the Secretary. *fn1"

 Facts

 At the time of the hearing before the ALJ, Mr. Jabczynski was forty-two years old. Mr. Jabczynski is married and has three children who live at home. Mr. Jabczynski has a high school education. Mr. Jabczynski was a journeyman mechanic at U.S. Steel, a job requiring him to regularly lift a tool box weighing 100-125 pounds, from 1971 to 1984, the year U.S. Steel shut down. In 1985, Mr. Jabczynski obtained work as a journeyman mechanic at Chrome Locomotive Industries. On September 10, 1987, Mr. Jabczynski was injured while working. He did not return to work after that date. Chrome Locomotive Industries fired him in December, 1989 because he was off work for too long. He has not been employed since.

 At the hearing before the ALJ, Mr. Jabczynski testified that due to his injury, he suffers from pain in his lower back and down his right leg. He said that he also has numbness in his hands which has caused him to drop coffee cups and gallons of milk. He stated that on a scale of one to ten, his pain is typically around a seven, and, in order to ease the pain, he changes positions often. Mr. Jabczynski testified that he had been taking Tylenol III which decreased his pain but that he stopped taking the medication about eight months prior to the hearing date because he could not afford to pay for it. He testified that in November, 1987, Dr. Levin, his treating physician, performed a laminectomy on him which relieved his back pain for about a week. Dr. Levin has recommended further back surgery, which Mr. Jabczynski has not had because his insurance company has refused to pay for it.

 Mr. Jabczynski testified that until 1989, he had engaged in physical therapy, including walking up to two and a half miles every other day and swimming for two and a half hours every other day. He was able to participate in these activities within forty-five days of his laminectomy. Mr. Jabczynski said that because his pain became worse due to these activities and he informed Dr. Levin of this fact, Dr. Levin advised Mr. Jabczynski to stop all therapy.

 Mr. Jabczynski testified that since 1989, he has spent 99 percent of his time at home. He said that he lays down for 12 to 13 hours each day and primarily watches television, listens to the radio and reads books. He does not feel any pain while lying down. Mr. Jabczynski testified that Dr. Levin gave him a cane which he uses to walk whenever he is alone. He stated that he has gained weight even though he does not have much of an appetite.

 He has never been referred to a psychologist or psychiatrist for treatment other than by his attorney and the social security administration. Mr. Jabczynski admitted a desire to figure out how to commit suicide in a way that would not hurt. Mr. Jabczynski testified that Dr. Levin has been his treating physician since 1987. Mr. Jabczynski stated that he used to see Dr. Levin about every three to five weeks but that his last visit was during the year before the hearing date.

 The medical records produced at the hearing indicate that in November, 1987, Mr. Jabczynski complained to Dr. Levin that while at work on September 10, 1987, he was kneeling down trying to lift about 200 pounds when he suddenly felt severe pain across his lower back. Dr. Levin noted that physical therapy immediately after the injury had not resulted in recovery. Dr. Levin reported that a myelogram and a CT scan showed a right L4 disc protrusion, or herniation. Dr. Levin performed a laminectomy on Mr. Jabczynski.

 In a letter to Mr. Jabczynski's attorney dated May 3, 1991, Dr. Levin stated that following the laminectomy, Mr. Jabczynski progressed satisfactorily until about one week after the operation when he complained of recurrent severe low back pain radiating to the right leg. During the next eighteen months, the low back and radicular pain persisted. A CT scan and myelogram done in July, 1989 again showed L4 disc herniation. Dr. Levin wrote:

 
It is my medical opinion that Mr. Jabczynski suffers from a recurrent herniated lumbar disc at L4-5 on the right. He experiences low back and radicular right leg pain. Range of motion of the lumbar spine is significantly impaired. Motor and sensory loss include extension hallius longus weakness and diminition [sic] of sensory [sic] occur at the L5 dermatome.
 
This condition has persisted since September 1987. Various modes of treatment, including physical therapy, bedrest, steroids and muscle relaxants have not relieved his symptoms. Repeat surgical intervention may or may not ameliorate his condition.
 
As a result of his symptoms and herniated disc disease, Mr. Jabczynski has sustained functional impairments. His activities of daily are reduced by his inability to sit, stand or walk for extended periods greater than one hour. The low back pain and right leg pain is aggravated by sitting, standing or walking and relieved with bedrest occasionally. Muscle relaxants, specifically Robaxain 750mg, has [sic] afforded him minimal relief. Heavy lifting, strenuous physical activity or repetitive motions are contraindicated for the patient. Any type of ongoing physical activity would be delectrivous [sic] to the lumbar spine.
 
As a result of the above-mentioned limitations, Mr. Jabczynski is physically incapable of performing substantial gainful activity. This includes a sedentary vocation which ...

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