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RAFAELA RODRIGUEZ v. SCHWEIKER

October 7, 1981

Rafaela RODRIGUEZ
v.
Richard S. SCHWEIKER, Secretary of Health and Human Services



The opinion of the court was delivered by: POLLAK

MEMORANDUM

This action is brought under Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to review a final decision of the Secretary of Health and Human Services ("Secretary"), denying plaintiff's claim for disability insurance benefits under Sections 216(i) and 223 of the Act, 42 U.S.C. §§ 416(i) and 423, and plaintiff's claim for supplemental security income benefits under Sections 1602, 1611(a) and 1614(a) of the Act, 42 U.S.C. §§ 1381a, 1382(a) and 1382c(a).

 Plaintiff, Rafaela Rodriguez, is a fifty year old female who claims to have been disabled since July 2, 1977. Her concurrent applications for benefits were filed on July 3, 1979. Each application was denied by the Social Security Administration both initially and upon reconsideration. On July 15, 1980, a hearing de novo was held before an Administrative Law Judge ("ALJ"). Ms. Rodriguez appeared with her attorney and a Spanish interpreter and testified. A decision, again denying benefits, was handed down on October 28, 1980. This decision became the final decision of the Secretary when the Appeals Council approved the decision on January 12, 1981. This appeal followed on February 13, 1981. The parties have filed cross-motions for summary judgment.

 Section 205(g) of the Social Security Act governs judicial review by a district court of the Secretary's determinations regarding disability benefits, specifying that

 
(The) court shall have the 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.

 42 U.S.C. § 405(g). On appeal, the Secretary's findings of fact shall be conclusive "if supported by substantial evidence." Id. Substantial evidence has been defined in this Circuit to mean

 
more than a mere scintilla. It means such relevant evidence as a reasoning mind might accept as adequate to support a conclusion.

 Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981), quoting from Richardson v. Perales, 402 U.S. 389, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981); Lewis v. Califano, 616 F.2d 73, 76 (3d Cir. 1980).

 The specific issue in this proceeding is whether the Secretary's determination that Ms. Rodriguez does not suffer from an impairment of such severity as to make her eligible for either benefit is supported by substantial evidence. In this regard, the test of eligibility for disability insurance benefits under Section 223(d)(2)(A), 42 U.S.C. § 423(d)(2)(A), is identical to the test of eligibility for supplemental security income benefits under Section 1614(a)(3) (B), 42 U.S.C. § 1382c(a)(3)(B). First, the claimant must have a 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 at least twelve months. 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). Next, the claimant's impairment must be so severe as to prevent her from engaging either in her previous work or, considering her age, experience, education or work experience, "in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. §§ 423(d)(2)(A) and 1382c(a) (3)(B). The claimant satisfies her initial burden of showing that she is unable to return to her previous work when her subjective claim is substantiated by medical evidence. Livingston v. Califano, 614 F.2d 342, 345 (3d Cir. 1980); Rossi v. Califano, 602 F.2d 55, 57 (3d Cir. 1979). Once the claimant has made such a showing, the burden of proof then shifts to the Secretary, who must demonstrate that the claimant has the capacity to do specific jobs existing in the economy. Rossi v. Califano, supra, 602 F.2d at 57.

 In the instant case, plaintiff has a fifth grade education received in Puerto Rico. She does not read or write in English and is able to speak the language only to a very limited extent. She is able to read and write in Spanish. She has no vocational training. Her work experience includes operating a cigar rolling machine and a sewing machine in Puerto Rico. Plaintiff testified at her hearing that she left her work in 1974 due to her pain and illnesses. (Tr. 51). The ALJ found that plaintiff suffered from the following medically determinable impairments: controlled hypertension, obesity, intercostal neuritis, mild osteoarthritis of the lumbar, dorsal and cervical spines, and synovial hypertrophy of the knees with mild degenerative arthritis. (Tr. 28). The ALJ determined, however, that these impairments did not significantly limit the plaintiff's abilities to engage in basic work activities and, therefore, under the applicable regulations, could not be characterized as severe. (Tr. 28-29). See 20 C.F.R. §§ 404.1520 and 404.1521 (1981). Because plaintiff did not suffer from a severe impairment, the ALJ concluded that plaintiff was not disabled within the meaning of the Social Security Act. (Tr. 29). The ALJ also found that plaintiff's testimony as to her pain and limitations was not credible on the theory that it was not supported by the medical evidence or by plaintiff's appearance at the hearing. The ALJ found that the plaintiff's pain was not of sufficient severity, persistence or duration to have disabled her. (Tr. 29).

 I.

 Plaintiff contends that the ALJ failed to give sufficient weight to her testimony of subjective pain. Plaintiff's complaints of severe pain recur throughout the record in the medical reports submitted to support her claim. (Exhibits 33, 34, 35, 37, 39, 41, 44, 53, 54, 55, 56). Plaintiff testified at her hearing that she suffers from disabling pain which she characterized as "a very, very strong pain, ... very deep in the bones." (Tr. 51). Plaintiff testified that prior to 1974 she missed days at work due to the pain in her back, legs, knees and chest. She finally left her work in 1974 because the pain in her body was so great that it drained all of her strength. (Tr. 49-51). Plaintiff further testified that she had been treated for pain in her legs. She indicated that the circulation in her legs was not good, causing her to wake in the night with throbbing pain. (Tr. 56). Plaintiff also stated that she had been prescribed the use of a cane to help her cope with pain in the bones of her heel, *fn1" and that this pain restricted her from walking any distance greater than one block. According to plaintiff's testimony, she has been taking medication for pain for approximately twenty years, but the medication makes her feel only "a little bit alleviated." (Tr. 61). She also takes medication to help her sleep. Moreover, "I have to have my pills beside my bed (because) I wake up in the morning very ill with a lot of pain in my body." (Tr. 63). Finally, plaintiff testified that she does not use public transportation because she is unable to ascend into the bus. In her words: "... when you have to wait for the bus, you have to go up, and its like tearing." (Tr. 64).

  A claimant's assertions of pain must be given serious consideration. Smith v. Califano, supra, 637 F.2d at 972; Baerga v. Richardson, 500 F.2d 309 (3d Cir. 1974), cert. den., 420 U.S. 931, 95 S. Ct. 1133, 43 L. Ed. 2d 403 (1975). See King v. Secretary of Health, Education and Welfare, 481 F. Supp. 947 (E.D.Pa.1979). Indeed, evidence of disabling pain, even though unaccompanied by objective medical data, can provide a basis for a finding of disability. Id. at 948. Accord, Bittel v. Richardson, 441 F.2d 1193, 1195 (3d Cir. 1971); Baith v. Weinberger, 378 F. Supp. 596, 603 (E.D.Pa.1974) (Luongo, J.). Even where a claimant's subjective complaints of ...


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