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VANDERSLICE v. HARRIS

March 6, 1980

Robert S. VANDERSLICE, Plaintiff,
v.
Patricia Roberts HARRIS, Secretary of Health, Education and Welfare, Defendant.



The opinion of the court was delivered by: ROSENBERG MITCHELL

SUPPLEMENTAL MEMORANDUM

The plaintiff, Robert S. Vanderslice, appealed from an adverse decision of the Secretary of Health, Education and Welfare on his application for disability and supplemental security income benefits. This case was referred to Robert C. Mitchell, United States Magistrate, for a report and recommendation and the Magistrate filed such a report and recommendation.

 After carefully examining both the Magistrate's report and recommendation and the record, I find this to be one of those cases which seem to be harsh because the law as it applies to this particular plaintiff and the regulations promulgated by the Secretary appear to have no mercy for his pains and miseries.

 The facts are set forth in the report and recommendation and I need not repeat them here. The plaintiff undoubtedly has suffered considerably because of one spinal fusion in 1971 and another in 1977, and he has been compelled to seek medical aid, hospitalization and the like for the ailments which he suffered. With the spinal condition concerning which he basically complains, he also had an attack of gastritis, which may or may not have left him entirely as healthy as he was before the attack.

 I can understand the pains and suffering that he underwent. I can understand as well the fact that he has been deprived of his capability of doing the hard labor he had originally done because of his weakened physical condition due to his ailments. The medical testimony has very well described his physical condition and his ailments and the plaintiff himself has complained exceedingly about the effect of his ailments, and the belief that he is unable to perform any gainful employment. However, as the Administrative Law Judge found, and as the same was eventually summarized by the Secretary, it is obvious that while this plaintiff has been deprived of a great deal of his capabilities, he is still able to perform considerable functions in and about the home and in the community. Thus it would seem that while the plaintiff feels that he is entitled to compensation under the law for the weakened change in his physical makeup, he has not recognized the fact that he is able to perform gainful employment under the law, and it is this fact that the Administrative Law Judge and the Secretary eventually found to be the reason why his application for benefits was denied.

 The United States Magistrate recognized this clearly and has presented the details in such a fashion as should have been clear to the plaintiff on why the law does not grant him benefits. But it is one of those situations where a person who suffers pain and lessened capacity is not easily persuaded that the law is right. However, the function of the Secretary was performed in accordance with law. The Magistrate recognized that too, and there is nothing that a district court judge can do to alter the situation because the plaintiff does have a competency as the vocational expert explained. Although the plaintiff may not be able to perform all of the particular jobs which the vocational expert has enumerated, he has sufficient capacity to perform certain gainful activities and be employed within these limitations as provided by law.

 I, therefore, adopt the report and recommendation of the Magistrate as the Opinion of the Court. The defendant's Motion for Summary Judgment will be granted.

 MAGISTRATE'S REPORT AND RECOMMENDATION

 I. Recommendation

 It is respectfully recommended that the defendant's motion for summary judgment be granted and that the decision of the Secretary of Health, Education and Welfare denying disability and supplemental security income benefits be affirmed.

 Presently before the Court for disposition are cross motions for summary judgment.

 On October 3, 1979, Robert S. Vanderslice, by his counsel, filed a complaint pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act, as amended, 42 U.S.C. §§ 405(g) and 1383(c)(3), for review of the Secretary's final determination disallowing his claim for a period of disability or for disability insurance and supplemental insurance benefits under Sections 216(i) and 223 of the Social Security Act, as amended, 42 U.S.C. §§ 416(i) and 423 and 1381 cf.

 On February 9, 1978, the plaintiff filed an application for disability and supplemental insurance benefits alleging an onset of disability in November, 1976 as a result of a spinal problem (R. 69-72, 167-170). Benefits were denied, and on June 1, 1978, the plaintiff requested reconsideration of the denial of benefits (R. 75). Upon reconsideration and in decisions dated June 6, 1978 and June 18, 1978, benefits were again denied (R. 77-78, 79-80). On July 24, 1978, the plaintiff requested a hearing (R. 34) and pursuant to that request a hearing was held on October 4, 1978 (R. 35-68). Subsequently, in a decision dated November 29, 1978, the Administrative Law Judge denied benefits (R. 22-28). On December 19, 1978, the plaintiff requested reconsideration of the denial of benefits (R. 21), and in a decision dated February 22, 1979, the Appeals Council remanded the matter to the Administrative Law Judge with directions to strike a particular exhibit (R. 20). The exhibit was stricken and in a decision dated March 13, 1979, the Administrative Law Judge denied benefits (R. 14-18). On April 9, 1979, the plaintiff requested reconsideration of this determination (R. 12) and upon reconsideration and in decisions dated May 10, 1979 and June 22, 1979, the prior decision was affirmed (R. 6, 11). Pursuant to an extension of time (R. 4) the instant complaint was filed on October 3, 1979.

 In reviewing an administrative determination of the Secretary, the question before any court is whether there is substantial evidence in the agency record to support the findings of the Secretary that the plaintiff failed to sustain his burden of demonstrating that he was disabled within the meaning of the Social Security Act. Richardson v. Perales, 402 U.S. 389, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Hargenrader v. Califano, 575 F.2d 434 (3d Cir. 1978); Chicager v. Califano, 574 F.2d 161 (3d Cir. 1978).

 It is provided in 42 U.S.C. Section 405(g) that:

 
"The Court shall have power to enter upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing. The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . ."

 Substantial evidence is " "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 216, 83 L. Ed. 126 (1938)," Richardson v. Perales, supra, 402 U.S. at page 401, 91 S. Ct. at 1427; Dobrowolsky v. Califano, 606 F.2d 403 (3d Cir. 1979).

 At the hearing held on October 4, 1978 (R. 35-68), the plaintiff appeared with counsel (R. 37) and testified that he is 35 years old and married with two children (R. 38-39) and that he is a high school graduate (R. 38).

 The plaintiff also testified that he worked as a steel industry maintenance man until he was laid off in 1974 (R. 40-41); that he worked as a school custodial helper for a year and an auto-reconditioner for about eight months (R. 42, 43) and that he tried to work as a bartender in 1977 but was unable to do so (R. 41).

 In addition, the plaintiff testified that his back hurts from any movement and his legs, shoulders and arms ache (R. 43, 46, 51); that he has stomach aches and gurgling and diarrhea (R. 50); that he does some house cleaning and laundry (R. 39); that he can sit for about an hour and stand for about a half hour but if he is moving he can stand for about two hours (R. 47); that he lays down two or three times a day (R. 48); that he takes medication for pain and for his stomach trouble (R. 48-49) and that he experiences constant dizziness and lightheadedness (R. 52).

 The plaintiff's wife testified (R. 53-55) that her husband generally sits around the house (R. 54) and appears to experience pain all day long (R. 54).

 The issue before the Court for immediate resolution is a determination of whether or not there is substantial evidence to support the finding of the Secretary that the plaintiff was not disabled within the meaning of the Act.

 The term "disability" is defined in 42 U.S.C. Sections 423(d)(1)(A) as:

 
"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 . . . ."

 For purposes of the foregoing, the requirements for a disability determination are provided in 42 U.S.C. Section 423(d)(2)(A):

 
"an individual . . . shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy regardless of whether such work exists in the immediate area in which he lives or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence . . . "work which exists in the ...

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