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July 29, 1980

PATRICIA ROBERTS HARRIS Secretary of Health, Education and Welfare

The opinion of the court was delivered by: LUONGO


Plaintiff filed applications for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 416(i), 423 (1976), and for supplemental security income benefits under Title XVI of the Act, 42 U.S.C. § 1382c (1976), on June 6, 1978. After his initial application and his request for reconsideration were denied, plaintiff had an evidentiary hearing before an administrative law judge. On June 22, 1979, the ALJ issued his findings and conclusions denying plaintiff's claim. The ALJ's determination became the final decision of the Secretary on July 27, 1979, when the Appeals Council denied plaintiff's request for review. Plaintiff then filed this action pursuant to sections 205(g) and 1631(c)(3) of the Act, 42 U.S.C. §§ 405(g), 1383(c)(3) (1976), seeking judicial review of the Secretary's decision. Presently before me are the parties' cross-motions for summary judgment. The United States Magistrate, in his Report and Recommendation (Doc. No. 9), takes the position that plaintiff is entitled to summary judgment. I disagree. Although the ALJ did not discuss all the details of all medical reports, I do not find, as did the Magistrate, that the hearing and decision were either prejudicial or unfair. I believe that a careful examination of the record shows that the Secretary, rather than plaintiff, is entitled to summary judgment.

 At the outset, I note that plaintiff had the burden of proving that he was unable to engage in any substantial gainful activity. See generally 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3) (1976). To this end, plaintiff offered a number of medical reports as well as his own testimony. The ALJ specifically found that although plaintiff suffered from a variety of ailments (lumbosacral strain, minimal spondylosis in the lumbar spine, mild obstructive lung disease, and depression), none of these impairments, either singly or in combination, was of disabling severity. Record at 13. The ALJ also rejected plaintiff's subjective complaints of severe back pain as not credible. Id. The only question before me is whether the finding of the ALJ that plaintiff is not disabled is supported by substantial evidence. 42 U.S.C. § 405(g) (1976). I conclude that it is.

 Unlike the Magistrate, I have no difficulty with the ALJ's assessment of the medical evidence and the determination that plaintiff's medical problems do not preclude his return to some of his previous occupations. I simply do not find the medical evidence to be as compelling as the Magistrate suggests. To be sure, the physicians' reports chronicle and substantiate plaintiff's various ailments, and the ALJ so found. The ALJ concluded, however, that plaintiff's impairments were not severe enough to be disabling, and would not prevent him from performing jobs that did not require extensive walking, carrying, or lifting. Record at 12. This finding must be upheld if supported by substantial evidence.

 In attacking the ALJ's finding, the Magistrate observes that two doctors recommended that plaintiff do no lifting. Report & Recommendation at 4. The Magistrate improperly concludes, however, that these reports, considered in light of the reports substantiating some of plaintiff's ailments, constitute substantial evidence of disability. First, the report of Dr. Morris is somewhat ambiguous. It is not at all clear whether he did, in fact, recommend no lifting and minimal walking or whether he was merely recording plaintiff's own description of his limitations. See Record at 144. Second, the proscription on lifting appears in only two of the numerous medical reports that make up this record. Inconsistencies in the medical reports do not automatically necessitate reversal of the Secretary's decision as unsupported by substantial evidence. It is the Secretary's obligation to resolve any conflicts in the evidence. Richardson v. Perales, 402 U.S. 389, 399, 91 S. Ct. 1420, 1426, 28 L. Ed. 2d 842 (1971). Therefore, even though the evidence may be susceptible of a different inference, the conclusion drawn by the Secretary must nevertheless be sustained if, on review of the entire record, it is determined that the Secretary's decision is supported by substantial evidence.

 The medical evidence in this record negates the existence of either a psychological or physiological abnormality as the cause of the markedly restricted activity alleged in plaintiff's application for disability benefits. Moreover, at least two physicians commented that plaintiff's subjective complaints outweighed objective medical findings. Record at 128, 161. After reviewing all of the medical evidence, and particularly in light of the aforementioned comments, I find that there is substantial evidence in this record to support the Secretary's conclusion that plaintiff is not disabled by reason of a medically determinable impairment.

 The Magistrate also recommends reversal of the Secretary's decision because the ALJ failed to consider two medical reports ostensibly corroborative of plaintiff's complaints of pain and consequently improperly discounted plaintiff's own testimony. Report & Recommendation at 4-5. I do not adopt the Magistrate's recommendation because I do not accept the grounds on which that recommendation is based.

  It is undisputed that subjective complaints may provide the basis for an award of benefits even though the testimony is unsupported by objective medical data. Bittel v. Richardson, 441 F.2d 1193, 1195 (3d Cir. 1971). This does not mean, however, that the ALJ may not gauge the credibility and weight of the subjective testimony against the other evidence in the record, including adverse objective medical findings, diagnoses, and expert medical opinions. See Gaultney v. Weinberger, 505 F.2d 943, 945-46 (5th Cir. 1974) (subjective evidence does not necessarily take precedence over conflicting objective medical testimony); Baith v. Weinberger, 378 F. Supp. 596, 603 (E.D.Pa.1974) (subjective complaints must be evaluated in light of other evidence in record). Bittel does not suggest, as the Magistrate apparently does, that the Secretary must disprove plaintiff's subjective complaints. To the contrary, the burden remains with plaintiff to satisfy the factfinder that the alleged pain is real and of disabling severity. Bittel v. Richardson, supra, 441 F.2d at 1195; Good v. Weinberger, 389 F. Supp. 350, 353 (E.D.Pa.1975). Subjective complaints, then, may establish plaintiff's entitlement to benefits provided that the ALJ does not reject plaintiff's testimony as unworthy of belief or find that the testimony, although credible, is outweighed by other evidence suggesting that plaintiff is not disabled.

 Here, the ALJ acknowledged that plaintiff's most significant complaint was severe and constant back pain. The ALJ nevertheless concluded that

the medical evidence of record and his appearance at the hearing do not substantiate these allegations and reflect doubt as to the claimant's credibility in regard to the subjective complaints offered in connection herewith.
Record at 13.

 Because it is the ALJ's responsibility to resolve conflicts in the evidence and because it is his prerogative as a factfinder to determine credibility, I must accept his conclusion unless there is no legitimacy to or obvious basis in the record for his disbelief of plaintiff's testimony.

 Nothing in this record counsels the rejection of the ALJ's finding with respect to plaintiff's complaints of pain. It is true, as the Magistrate points out, that plaintiff testified to his inability to cook his own meals and his difficulty in going up and down stairs. Record at 29-30. Plaintiff also stated, however, in his application for disability benefits that he visits and is visited by friends and relatives and that he gets around by bus. Record at 94. It is this evidence that the ALJ apparently credited in evaluating the degree to which plaintiff's pain limits his daily activities and in drawing an adverse inference about the alleged severity of plaintiff's pain. Record at 10, 12.

 The ALJ also relied on what he observed during the course of the hearing in concluding that plaintiff did not suffer from pain of disabling ...

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