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Rocco v. Heckler

decided: August 31, 1987.


Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Civil No. 85-2527.

Gibbons, Chief Judge, Weis, Circuit Judge, and Pollak,*fn* District Judge.

Author: Weis


WEIS, Circuit Judge.

This appeal is from the district court's grant of summary judgment in favor of the Secretary, thus denying the claimant's request for disability benefits under the Social Security Act.

Claimant Rocco suffers from a variety of ailments: severe lumbar stenosis, arthritis, diverticulosis, gout, hypertension, diabetes, and obesity. He is now 48 years old and has a ninth-grade education. In the past claimant worked as a self-employed carpenter, plasterer, laborer, and truck driver. He has not been employed since 1982. Because his insured status extends through December 31, 1984, claimant must show that he was disabled before that date.

The Secretary denied the first claim submitted on November 21, 1983. Rocco filed a second claim on September 21, 1984. An ALJ reviewed both claims de novo and, after a hearing, denied benefits. Conceding that claimant suffers from several impairments and can no longer pursue his former occupation, the ALJ nevertheless found that Rocco is capable of performing sedentary work.

In addition to his own testimony, claimant produced reports by his attending physicians. Dr. Anthony Susen, a Board-certified neurosurgeon, operated on the claimant's lower back in February, 1983 and again in September, 1983. The doctor observed that x-rays of Rocco's lumbar spine "look as though each vertebra had a D-10 bulldozer running over it a few times and it tried to heal." In a report dated October 18, 1983, Dr. Susen said, "This man is certainly totally disabled at the present time for any type of work. I doubt if this man will ever be able to return to heavy work with respect to his low back because of his stenotic lumbar spine not withstanding the surgery that he has had."

Dr. George Wheeling saw claimant in December, 1983 and January, 1984, after the two surgical procedures had been performed by Dr. Susen. Dr. Wheeling found nerve root impairment and recurrent disc or scar tissue in the lumbar area. A CT scan indicated calcified ligaments and/or protruding discs. He recommended lumbar blocks, but postponed additional surgery until claimant could lose weight. The doctor considered claimant totally disabled. In a supplemental report, Dr. Wheeling noted that claimant was admitted to Lee Hospital on May 14, 1985, where he underwent conservative treatment for his back pain. The doctor opined, "I consider him totally disabled at the present. "

Dr. Clyde Harriger has been the claimant's family physician for more than twenty years. He stated that the back injury occurred in 1968 when Rocco lifted a heavy radiator. After that incident, claimant received treatment at Greensburg Hospital. In his report of October 17, 1984, Dr. Harriger commented that although claimant had "a history of almost malignant type obesity for which he has received treatment," he had failed to lose weight despite "honest efforts over the years" in going to various physicians and clinics. The doctor described the course of treatment for the claimant's hypertension, gout, and slowly progressive diabetes, and enumerated the medications prescribed for each of those ailments. In addition, Dr. Harriger detailed the claimant's continuing back problems and explained the medical efforts to reduce the accompanying pain.

The Harriger report concluded: "It is my feeling, and I concur with the specialists involved that Mr. Rocco is totally incapable of holding down full time employment in any type of occupation. He is unable to stand, sit or bend or kneel with any kind of freedom for any prolonged period of time. I feel that he is totally and permanently disabled from any type of gainful employment."

In June, 1985, Dr. Harriger submitted a supplemental report to the Appeals Council. This report indicated that, in addition to his previously existing conditions, claimant had developed diverticulitis in November, 1984, and that Dr. James Furnary had performed a colectomy at Mercy Hospital in Johnstown. Dr. Harriger concluded his report as follows, "I unequivocally believe Mr. Rocco is completely disabled, that he is unemployable for any type of position I could name, and finally that his prognosis is not good."

The Social Security Administration referred the claimant to Dr. Yoon Jin Chung, a physiatrist, for an evaluation in November, 1984. Dr. Chung found that claimant had a limitation of motion for forward bending, but that lateral bending and rotation of back movements were within normal limits although accompanied by tenderness of the lower back. The doctor also noted that claimant had a heel spur removed in September, 1983. According to Dr. Chung's evaluation, claimant suffered from chronic lower back pain and right trochanteric bursitis. The examiner could not rule out possible spinal stenosis or "possible right meralgia paresthetica on the right." The report concluded, "at the present time I feel that the patient is not able to perform the job which requires much stress to the lower back."

A review of the record reveals numerous hospitalizations since 1982. The following list is not ...

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