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CANCEL v. HARRIS

March 4, 1981

Gregorio Molina CANCEL
v.
Patricia Roberts HARRIS, Secretary of Health and Human Services



The opinion of the court was delivered by: GILES

MEMORANDUM AND ORDER

This is an action under Sections 205(g) and 1631(c)(3) of the Social Security Act, as amended, ("the Act") 42 U.S.C. § 405(g) and 1383(c)(3), to review a final decision of the Secretary of Health, Education and Welfare (hereinafter "Secretary") denying the concurrent claims of plaintiff, Gregorio Molina Cancel for disability benefits under Title II of the Act, 42 U.S.C. § 416(i) and 423 and for supplemental security income benefits under Title XVI of the Act, 42 U.S.C. § 1381a. The June 19, 1978 determination of an Administrative Law Judge ("ALJ") was adverse to plaintiff. The ALJ concluded that the evidence adduced at the hearing failed to show that plaintiff's alleged impairments, either singularly or in combination, were severe enough to prevent him from engaging in substantial gainful employment. The ALJ also considered plaintiff's complaints of pain. He concluded that while the record evidence established that claimant may experience some discomfort, the record failed to show the existence of any significant medical abnormalities to support a finding that the pains are incapacitating. The ALJ's decision was affirmed by the Appeals Council on August 22, 1978 and it, therefore, became the final decision of the Secretary. Plaintiff appealed from the final decision. Both parties have moved for summary judgment.

 The sole issue before the court is whether there is substantial evidence to support the Secretary's final decision denying both disability insurance and supplemental security income benefits. The standards of judicial review are the same for both benefit claims and the discussion below applies equally.

 Plaintiff filed for disability insurance and supplemental security income benefits on May 7, 1975. He claimed disability and inability to work since June 1975 as the result of a heart condition, back ailment, ulcers, asthma and leg ailments. Plaintiff makes two arguments. He contends first that the Secretary failed to sustain his burden of proving that plaintiff can engage in substantial gainful employment. He complains that the ALJ elicited through a hypothetical question an opinion from plaintiff's vocational rehabilitation expert that plaintiff could perform certain sedentary and light jobs, assuming a finding that there were no physical or mental impediments to plaintiff's undertaking such activities. (Tr. at 17). Plaintiff submits the hypothetical question was not based upon record evidence and, therefore, was improper. Second, plaintiff contends that the ALJ in his decision erred in rejecting claimant's complaints of pain as nondisabling. The Secretary submits that there was substantial evidence for the finding of the lack of disability under the Act and that the ALJ did address adequately plaintiff's complaints of pain in the context of the competent medical evidence. We agree.

 For the reasons set forth below, the court grants the Secretary's motion for summary judgment and denies plaintiff's.

 The plaintiff was born on December 2, 1925 and attended school in Puerto Rico through the eighth grade (Tr. 39). He last worked in 1973 in a metal factory but only for three weeks. He operated a machine that cut, folded and formed metal. He was required to stand continually and to use his feet and hands (Tr. 41-42). He stopped working because he claimed he was suffering from disabling pains in his back, arms, legs and stomach. He has not worked since that time (Tr. 45, 87).

 Prior to working in the metal factory, plaintiff worked in a china factory in Puerto Rico for twenty years. His job involved pushing boxes of dishes from one department to another using a cart (Tr. 43-45). He came to the mainland in 1973. He does not speak English.

 Plaintiff claims to have pain in both his legs but more so in the left leg. He testified that his left kneecap pinches (Tr. 50) and that he "almost always" has pain in his legs and feet (Tr. 46). Plaintiff testified that he is currently being treated by Dr. Steven L. Barnett, a chiropractor, for leg and back problems. He receives massages for the pain and testified that these give him some relief. He wears special bandages on his left kneecap and ankle (Tr. 55) as well as a special type of girdle on his back to relieve the pain (Tr. 57).

 Plaintiff claims that he cannot sit for long periods of time due to the pain in his lower back but that the pain is alleviated somewhat by the special girdle he wears for five or six hours each day (Tr. 58). He claims that he is only able to stand for about one hour without experiencing "very strong" pain in his back and legs. He claims that he can only walk about a half a block or a block without pain. When he does experience pain, he takes medication or uses Ben-Gay. Occasionally, he lies down (Tr. 65).

 The pain pills and Ben-Gay for his back were prescribed by G. E. Gonzalez, M.D. who also gave him medication for his asthma (Tr. 60-61). Dr. Gonzalez reported that plaintiff was his patient from December, 1974 until February, 1976, but noted that since he had not seen the plaintiff for more than a year, he could not give a prognosis as to his condition as of the time of the hearing (Tr. 190). Dr. Gonzalez diagnosed the plaintiff as having a hiatal hernia, ulcer disease and allergic rhinitis. At his last examination, in February, 1976, plaintiff's condition was found to be stable except for epigastric pain, belching, heartburn, and a runny nose (Tr. 135). In a report dated July 29, 1977, Dr. Gonzalez concluded that the plaintiff was suffering from bronchial asthma, ulcer disease and degenerative lumbar arthritis.

 Dr. Steven L. Barnett reported that he treated the plaintiff from December 24, 1976 until August 5, 1977 at a frequency of two or three visits each month for a chronic low back condition. Plaintiff's symptoms included muscle spasms along the paravertebral borders of the lumbar spine. Both an Ely heel to buttock test and a laseague test proved positive on the right side. Also, an X-ray study revealed disc narrowing at L4-L5 and L5-S1 with an increased lumbar curve. Dr. Barnett concluded, however, that future prognosis depended upon the ability to reduce muscular spasm along the lumbar spine and the "holding factor" of the sacroiliac articulation (Tr. 185, 191-192). He did not rule out a remedial course of treatment.

 The plaintiff was examined by Paul B. Solnick, M.D., an internist and pulmonary specialist, on May 27, 1976 at the request of the Bureau of Vocational Rehabilitation, Disability Determination Division. Dr. Solnick concluded from a study of medical records from Hahnemann Hospital that the plaintiff's chronic duodenal ulcer and his possible hiatal hernia with gastroesophageal reflex had not been associated with any complications of ulcer disease and should be responsive to medical therapy.

 Although plaintiff said he had a heart problem, Dr. Solnick's examination was negative as to any heart condition. There was no evidence that the plaintiff's heart was enlarged, no ...


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