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ALVAREZ v. SECRETARY OF HHS

October 29, 1982

JORGE L. ALVAREZ
v.
SECRETARY OF HEALTH AND HUMAN SERVICES



The opinion of the court was delivered by: LUONGO

 On May 17, 1976, plaintiff, Jorge Alvarez, filed for Social Security Disability and Supplemental Security Income benefits under 42 U.S.C. §§ 423, 1382c (1976). On July 13, 1979, an administrative law judge (ALJ) found that Alvarez was not entitled to disability benefits. The ALJ's decision was affirmed by the appeals council. Plaintiff then filed suit in this court on September 24, 1979. The case was referred to a magistrate and based on the magistrate's Report and Recommendation, the case was remanded to the Secretary for further consideration because of the ALJ's (1) disregard of the findings of treating physicians while giving great weight to the evaluation of a one-time examining physician; (2) failure to give proper weight to plaintiff's emotional and mental problems; and (3) failure to require the testimony of a vocational expert.

 On remand, two further hearings were held before two ALJs not previously involved with the case, and plaintiff was again found not eligible to receive benefits. This decision was also affirmed by the appeals council.

 On June 21, 1982, plaintiff filed a motion to reinstate with this court and thereafter both parties filed motions for summary judgment pursuant to 42 U.S.C. § 405(g) (1976 & Supp. IV 1980) seeking judicial review of the Secretary's decision. Under this section, the court's role is limited to determining whether the Secretary's decision is supported by substantial evidence -- "evidence a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971), Winfield v. Mathews, 571 F.2d 164, 168 (3d Cir.), cert. denied, 439 U.S. 869, 99 S. Ct. 198, 58 L. Ed. 2d 180 (1978).

 Although I might have found otherwise were I considering the matter de novo, I conclude, after careful examination of the entire record, that the Secretary's decision is supported by substantial evidence and the Secretary is, therefore, entitled to summary judgment.

 Jorge Alvarez is a 38 year old man with a seventh grade education. He was born in Puerto Rico, does not write English and reads only some words. He has held a variety of unskilled jobs as a custodian, truck driver, orderly, loader of sheepskins, metal cutter, and as a construction and farm laborer.

 Alvarez claims to have become disabled in September 1974, primarily because of lower back, ankle and knee problems. In addition, he periodically suffers from chest pains, allergies, sinus problems, stomach pains, and ear infections. He is nervous and depressed; his medical condition is exacerbated by his family problems; his wife is disabled, one child has spina bifida, and another child has recurrent medical problems. Plaintiff contends that the combination of these physical, mental, and emotional problems constitutes a disability. *fn1"

 ALJ Roseman found that plaintiff suffered from psychogenic arthritis of the left knee, low back syndrome, chronic left ankle sprain, instability of the knees and upper respiratory infection of an exertional nature, but that he retained enough residual functional capacity to perform sedentary jobs. *fn2" Record at 258-59. The ALJ also found that claimant's testimony about his pain was not credible as to the severity and duration that plaintiff had described. ALJ Roseman found that plaintiff's mental and emotional problems did not significantly affect his residual functional capacity. Record at 259. The appeals council, in reviewing this last finding, determined that more evidence was needed. Record at 242. At the second post-remand hearing, ALJ Marden considered the evaluations of an additional psychiatrist, psychologist, and vocational expert and found that plaintiff's emotional and mental problems did not significantly reduce his functional capacity. Record at 235.

 Alvarez objects specifically to the ALJs' findings concerning pain and the cumulative effects of emotional, mental, and physical problems. I will review each finding and the evidence supporting it separately.

 Pain

 Alvarez' testimony and medical records contain claims of various types of pain, most seriously in the left knee and ankle and in the lower back, of such severity as to render him unable to stand or walk for longer than fifteen minutes or sit for more than one half hour. Record at 351-52. Had the ALJ found this testimony credible, it would have established a claim of disability. Pain, in and of itself, can be disabling and claimant's assertions of pain must be given serious consideration, even where the assertions are not fully confirmed by objective evidence. Smith v. Califano, 637 F.2d 968, 972 (3d Cir. 1981). ALJ Roseman discussed the credibility issue in some detail. Record at 257-58. In discussing the reports of both treating and consultative physicians, the ALJ noted that findings were of tenderness and discomfort rather than of pain. *fn3" He also noted the paucity of objective evidence of conditions which would cause the ankle, knee, and back pain, the absence of loss of motion because of pain, and the absence of any consistent treatment for diagnoses which might be the basis for the pain.

 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. . . ." Torres v. Harris, 494 F. Supp. 297, 300 (E.D. Pa. 1980), aff'd, 659 F.2d 1071 (3d Cir. 1981). The ALJ seems to have done that weighing in this case and found plaintiff's descriptions of severity and duration of pain not credible. I must defer to the factfinder on issues of credibility. Davis v. Califano, 439 F. Supp. 94, 98 (E.D. Pa. 1977). "If [the ALJ] explicitly addresses the issue in his decision and his conclusion is supported by evidence he has the discretion to reject a claim."

 The ALJ did find that plaintiff's knee, ankle, and back problems precluded all but sedentary work, but that the back pain, from which plaintiff had suffered for many years during his working career, did not prevent all significant work activity. In making this finding, the ALJ correctly acknowledged that the absence of objective ...


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