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Murdaugh v. Secretary of Department of Health & Human Services of United States

decided: January 21, 1988.

HARVEY MURDAUGH, PLAINTIFF-APPELLANT,
v.
SECRETARY OF THE DEPARTMENT OF HEALTH & HUMAN SERVICES OF THE UNITED STATES, DEFENDANT-APPELLEE



Claimant Harvey Murdaugh appeals from the February 13, 1987 decision and order of the United States District Court for the Eastern District of New York Nickerson, J.. affirming the Department of Health and Human Services Secretary's denial of claimant's application for supplemental security income benefits pursuant to Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383c (1982 & Supp. III 1986). Reversed and remanded. Judge Mahoney concurs in part and dissents in part in a separate opinion.

Oakes, Cardamone and Mahoney Circuit Judges.

Author: Cardamone

CARDAMONE, Circuit Judge:

On this appeal from an order of the United States District Court for the Eastern District of New York (Nickerson, J.), Harvey Murdaugh, a/k/a George Murdock, challenges a determination by the Secretary of the United States Department of Health and Human Services, which was affirmed by the district court, finding him capable of performing the full range of sedentary work and therefore not entitled to Supplemental Security Benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383c (1982 & Supp. III 1986). Because we conclude that claimant is "disabled" within the meaning of § 1382c(a)(3)(A) of the Social Security Act, we reverse the order of the district court and remand the matter to the Secretary for a calculation and award of benefits.

I Claimant's Medical History

Appellant is a single, black male who in the course of being held up in August 1980 sustained a gunshot wound to his abdomen and subsequently underwent surgery to control the internal bleeding and to correct bowel perforations. The bullet remains lodged in Murdaugh's lower spine. The following year claimant was injured when a car struck the taxi he was driving on the left front door. Although he was treated and released from the Baptist Medical Center emergency room on the day of the accident, he was admitted a week later, put into pelvic traction, and diagnosed as having an acute lumbosacral strain and a torn meniscus of the left knee. On August 22, 1981 the attending physician, Dr. Greenberg, concluded that Murdaugh had a "semi-partial permanent disability" and recommended conservative therapy.

On September 1, 1981 claimant made the first of several visits during a two-year period to Dr. Zwi Kahanowicz, an orthopedic specialist. Dr. Kahanowicz's final diagnosis was derangement of the lumbar spine, a left-side herniated disc, and a tear of the medial meniscus or interarticular fibrocartilage of the left knee joint. In March 1983 Dr. Kahanowicz noted that claimant was "totally disabled." In an evaluation of claimant's residual functional capacities dated July 28, 1985 the treating physician stated that in an eight-hour day claimant can sit two hours, stand two hours, walk two hours, and can lift and carry ten pounds. In a written report two days later, the doctor stated that claimant suffers a severe permanent disability.

Claimant consulted Dr. Charles Ogunro, a neurologist and psychiatrist, on September 24, 1981, regarding his headaches, nausea, and pain in his lower back and left knee. Dr. Ogunro found spinal hyperextension injury with cervical and lumbar sprain, tenderness and spasms in the back and tenderness and traumatic arthropathy of the left knee associated with diminished range of motion. He also diagnosed appellant as suffering from post-traumatic syndrome resulting in "significant and global limitation of intellectual affectual physical function."

After filing for disability benefits on March 28, 1983, claimant was examined in April 1983 by Dr. Ray Brown at the Secretary's request. Dr. Brown found full, free, and painless spinal motion and a full range of hip, knee, and ankle motion. In 1984 claimant was a patient at both the medical and orthopedic clinics of Kings County Hospital Center. His consulting physician there, Dr. S. Cohen, noted on January 4, 1984 that claimant was unable to do manual labor and should be given a "desk job." Dr. Cohen prescribed motrin for claimant's pain. Claimant also sought treatment in 1985 at New York Hospital Cornell Medical Center for low back pain and weakness and limited motion in the left leg and foot. His treatment consisted of motrin, dolobid, and "limbering" home exercises. Finally, complaining of pain behind the knee, claimant visited the Arthritis Clinic of the State University of New York Hospital's Downstate Medical Center in 1985.

At the request of his attorney, claimant saw Dr. Gerald Posner, a gastroenterologist, on July 16, 1985. His examination revealed right lumbo-sacral tenderness with a normal range of motion. Although claimant was able to get on and off the examination table and squat normally, Dr. Posner concluded that claimant's low back syndrome -- a "most likely permanent" condition probably dating back to the gunshot wound -- may cause difficulty in walking, lifting, and maintaining one position. Rating claimant's physical functional capacity, Dr. Posner found that in an eight-hour day, he could sit two hours, stand two hours, walk two hours, and lift and carry ten pounds for two hours, but could not do any bending.

Claimant also consulted with Dr. Mitchell Forman, an osteopathic physician, on July 18, 1985. Dr. Forman attributed claimant's chronic low back and leg pain primarily to his abnormal gait caused by his knee injury. He found that claimant could sit eight hours, stand and walk for one-half hour each, and could lift ten pounds from a sitting position for two hours. Dr. Forman opined that claimant "could work at a desk, sitting and using his upper extremities, but the ambulation involved in getting to work would be disabling to him."

Claimant has not returned to any of his usual occupations of driver, cook, stockman, and porter since his 1981 automobile accident. From March 1984 to April 1985, he worked for the New York City Department of Social Services as a condition of receiving welfare benefits, answering the telephone from 9:00 a.m. to 3:00 p.m. (with an hour's lunch) three days a week. He left that job after it began to require message deliveries which caused too much knee and leg pains.

Murdaugh claims that his knee injury, lower back spasms, and abdominal pain and nausea leave him in almost constant pain. It is undisputed that he takes well beyond the recommended dosage of analgesics prescribed to him, and his excessive usage more than likely is the cause of his nausea. The record further indicates that claimant, who is now 44 years old, rents a furnished room in a private home. His daily activities include watching television, reading the newspaper, and watering his landlady's ...


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