Ferraris v. Heckler, 513

• Decision Date: 22 February 1984
• Docket Number: No. 513,D,513
• Citation: 728 F.2d 582
• Parties: , Unempl.Ins.Rep. CCH 15,169 Giacomo FERRARIS, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of the Department of Health and Human Services of the United States, Defendant-Appellee. ocket 83-6246.
• Court: U.S. Court of Appeals — Second Circuit

Page 582

728 F.2d 582

4 Soc.Sec.Rep.Ser. 192, Unempl.Ins.Rep. CCH 15,169

Giacomo FERRARIS, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of the Department of Health and Human Services of the United States, Defendant-Appellee.

No. 513, Docket 83-6246.

United States Court of Appeals, Second Circuit.

Argued Dec. 5, 1983.

Decided Feb. 22, 1984.

Stanley F. Meltzer, New York City (Meltzer & Fishman, New York City, on the brief), for plaintiff-appellant.

William B. Peterson, Asst. U.S. Atty., Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty., and Miles M. Tepper, Asst. U.S. Atty., Brooklyn, N.Y., on the brief), for defendant-appellee.

Before TIMBERS, VAN GRAAFEILAND and NEWMAN, Circuit Judges.

TIMBERS, Circuit Judge:

Giacomo Ferraris commenced this action in the Eastern District of New York pursuant to Sec. 205(g) of the Social Security Act (Act) as amended, 42 U.S.C. Sec. 405(g) (Supp. V 1981), seeking review of a final decision by the Secretary of Health and Human Services (Secretary) which denied Ferraris' application for disability insurance benefits. The district court, Henry Bramwell, District Judge, after hearing argument on cross motions for judgment on the pleadings, rendered a decision in open court on June 17, 1983, granting the Secretary's motion, denying Ferraris' motion, affirming the Secretary's decision and dismissing the complaint. From the judgment entered on the court's decision, Ferraris has taken this appeal. We reverse and remand.

I.

Ferraris is a fifty-four year old male who was born in Italy. He is presently a naturalized citizen who has lived in the United States since 1954.

He has at best an eighth grade level of education. He is literate in Italian and can read some English. He is sufficiently proficient in spoken English that he did not require at his hearing the assistance of the Italian interpreter who had been provided for him. His primary work experience in the United States has been that of a waiter and maitre d'.

On June 9, 1976, Ferraris was involved in an automobile accident in which he injured his back. He did not seek immediate medical treatment and reported to work the following day. Some two weeks later, after consulting with his family physician, he was examined by Dr. Irving Liebman, an orthopedic surgeon. On the basis of x-rays taken at that time, Dr. Liebman diagnosed a herniated lumbar disc at level L5-S1. Ferraris was hospitalized and put in traction for two weeks.

He returned to work for approximately ten days in August 1976 but found it too painful to continue. He obtained a part-time job in early September 1976, working four hours a day. He continued at that job until October 1977. He has not been employed since.

In October 1977, Ferraris again was hospitalized for two weeks. A myelogram disclosed a second herniated lumbar disc at level L4-L5. Dr. Liebman recommended either a laminectomy or fusion. Ferraris refused surgery. He continued to visit Dr. Liebman approximately once a week from that time to the date of his hearing, receiving diathermy treatment for symptomatic relief of pain.

Ferraris complains of constant lower back pain radiating to his legs. This restricts him from standing, sitting or walking for any prolonged periods of time. He claims that because of the pain the longest he can sit at any one time without standing up is two hours, and then only if he shifts in his seat every fifteen minutes. Despite his restrictions, he does some cooking and cleaning around the house. He avoids lifting any objects weighing more than a few pounds. He drives his automobile on some occasions, but is not confident of his driving ability because of his pain. He will ride in a bus but avoids the subway.

Ferraris first filed his application for disability insurance benefits on January 13, 1978. As subsequently amended, his application claimed disability from October 9, 1977. His claim was denied initially on March 27, 1978. Reconsideration was denied on December 14, 1978. On January 26, 1979, he requested a hearing de novo before an Administrative Law Judge (ALJ). He received no response to that request.

On September 27, 1979, he commenced his first action in the Eastern District of New York. The case was returned to the Social Security Administration by stipulation of the parties dated March 18, 1980. A hearing was held before an ALJ on May 21, 1980. In a decision dated September 30, 1980, the ALJ determined that Ferraris was not disabled within the meaning of the Act and therefore was not eligible for disability benefits. The Appeals Council denied Ferraris' petition for review on December 30, 1980, thereby making the ALJ's decision the final decision of the Secretary.

Ferraris thereupon commenced the instant action in the Eastern District of New York on February 6, 1981. On June 18, 1982, he moved for judgment on the pleadings. Action on his motion was held in abeyance pending the Supreme Court's decision in Heckler v. Campbell, --- U.S. ----, 103 S.Ct. 1952 (1983). After Campbell was decided, the Secretary cross-moved for judgment on the pleadings. After hearing oral argument on June 17, 1983, the court disposed of the motions as stated above, holding that the Secretary's determination was supported by substantial evidence in the record and dismissing Ferraris' complaint.

II.

We turn directly to the reasons for our reversal of the judgment of the district court and remand of the case for further proceedings.

(A) Controlling Statute And Regulations.

The Act defines disability as an "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." 42 U.S.C. Sec. 423(d)(1)(A) (1976 & Supp. V 1981). The Act empowers the Secretary to establish rules and procedures for the determination of disability, id. Sec. 405(a), and the Secretary is directed to include findings of fact in any decision which is in whole or in part unfavorable to the claimant. Id. Sec. 405(b)(1).

The Secretary has promulgated regulations governing most disability determinations. The burden is upon the claimant to show that he suffers from a severe impairment that renders him disabled. Carroll v. Secretary of Health and Human Services, 705 F.2d 638, 642 (2 Cir.1983); 20 C.F.R. Sec. 404.1520 (1983). Several scenarios may occur. First, if the claimant is engaged in any substantial gainful employment, or is not afflicted with a severe impairment, that ends the inquiry and the claimant is determined not to be disabled. Second, if the claimant suffers from an impairment listed in 20 C.F.R. Part 404, subpart P, Appendix 1, that again ends the inquiry and the claimant is determined to be disabled. Third--the situation in the instant case--if the claimant suffers from a severe impairment but one not listed as presumptively disabling, he must show that he is unable to continue his past relevant vocational work. If successful in making that showing, the Secretary then, in order to justify denying benefits, must show that the claimant may perform some less demanding, but gainful, employment. Campbell, supra, --- U.S. at ----, 103 S.Ct. at 1954.

In the course of determining whether the claimant may perform other substantial, gainful employment, the Secretary is directed to evaluate the claimant on the basis of four factors identified by Congress. The four factors are age, education, physical ability and work experience. 42 U.S.C. Sec. 423(d)(2)(A). The Secretary has promulgated guidelines--the so-called "Grid Regulations"--20 C.F.R. Part 404, subpart P, Appendix 2 (1983), which normally require a conclusion of either disabled or not disabled based on the combination of these four factors. These guidelines recently were upheld as valid by the Supreme Court in Campbell, supra. The disputed issues on this appeal arise from the ALJ's findings in connection with Ferraris' physical ability and work skills.

(B) Findings As To Physical Ability Or Residual Work Capacity.

In determining the claimant's physical ability, or residual work capacity, the Secretary must consider objective medical facts, diagnoses and medical opinions based on such facts, and subjective evidence of pain or disability testified to by the claimant or others. Carroll, supra, 705 F.2d at 642; Parker v. Harris, 626 F.2d 225, 231 (2 Cir.1980); Marcus v. Califano, 615 F.2d 23, 26 n. 2 (2 Cir.1979). In particular, the Secretary is required to give considerable--and if uncontradicted, conclusive--weight to the expert opinions of the claimant's own treating physicians. Donato v. Secretary of the Department of Health and Human Services of the United States, 721 F.2d 414, 419 (2 Cir.1983); Carroll, supra, 705 F.2d at 642; Aubeuf v. Schweiker, 649 F.2d 107, 112 (2 Cir.1981); Parker, supra, 626 F.2d at 231. Moreover, in making any determination as to a claimant's disability, the Secretary must explain what physical functions the claimant is capable of performing. Kerner v. Flemming, 283 F.2d 916, 921 (2 Cir.1960); Deutsch v. Harris, 511 F.Supp. 244, 249 (S.D.N.Y.1981).

In Ferraris' case, the ALJ heard testimony of Ferraris himself, his wife, and his treating physician, Dr. Liebman. In addition, reports were submitted by four consulting physicians. The ALJ set forth extensively the evidence he considered, which may be summarized briefly as follows.

According to Dr. Liebman, the treating physician, his examinations revealed spasm throughout the lumbosacral spine with significant tenderness and restriction of movement. He estimated that Ferraris could walk only one to two blocks before resting, after which he possibly could walk another one to two blocks. Standing was limited to one and a half hour periods, separated by half hour rest periods. Sitting in one place was limited to one to two hours, followed by twenty minutes of movement...