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DAVIS v. SCHWEIKER SECY. OF HHS

February 22, 1983

CHARLES E. DAVIS
v.
RICHARD S. SCHWEIKER, Secretary of Health and Human Services



The opinion of the court was delivered by: LUONGO

 LUONGO, Ch. J.

 This is an action under 42 U.S.C. § 1383(c) to review the final decision of the Secretary of Health and Human Services (Secretary) denying plaintiff's claim for supplemental security income. Presently before me are the parties' cross-motions for summary judgment. *fn1" For reasons discussed herein, I will deny the plaintiff's motion, grant the Secretary's motion for summary judgment and enter judgment in favor of the Secretary.

 The Secretary found that plaintiff was not disabled within the meaning of the Social Security Act and, therefore, concluded that plaintiff was not entitled to supplemental security income. The sole issue for this court to determine is whether there is substantial evidence in the record as a whole to support the Secretary's findings. 42 U.S.C. §§ 405(g), 1383(c) (3). Under the substantial evidence test, the reviewing court is bound to accept the Secretary's findings of fact if supported by "such relevant evidence as 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) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938)).

 The record in this case is as follows. Plaintiff was born on August 8, 1936. Although he completed only the 10th grade, plaintiff did receive a high school equivalency diploma. Plaintiff's work history indicates that he has had experience as a maintenance worker, stock clerk, rigger and warehouseman. Plaintiff testified that he has not worked since the 1960's.

 Turning to the medical evidence, the record contains a report from Richard Kaplan, M.D., which states that plaintiff was hospitalized in April 1973 with a diagnosis of traumatic aseptic necrosis of the left hip. During that hospitalization, a total replacement of plaintiff's left hip was performed (Tr. 98). The record also contains a medical summary and x-ray report from Misericordia Hospital dated May 29, 1975. This report states that plaintiff was involved in an automobile accident and suffered "a blunt injury to his left knee with small traumatic effusion" (Tr. 84). An ace bandage was applied, and plaintiff was released (id.). In a later report dated November 12, 1975, Leo H. Ley, M.D., states that plaintiff has a history of heart disease, low back pain with two lumbar discs herniated and operated upon, and peptic ulcers. Dr. Ley's diagnosis was low back syndrome secondary to lumbar disc surgery, coronary artery disease and peptic ulcers. Although he performed no laboratory or special studies, Dr. Ley found that plaintiff had stiffness in the lumbar area. Dr. Ley concluded that plaintiff was unable to work due to his low back status (Tr. 86-89). Finally, the record contains two x-ray reports from Philadelphia General Hospital. The first of these, dated April 28, 1976, is a report of x-rays performed on plaintiff's left knee and pelvis. The x-ray of the pelvis showed a status left hip replacement with a "widened radiolucent space between the prosthesis and the medullary space of the left femur raising the possibility of loosening" (Tr. 139). The x-ray of the left knee was determined to be an "unremarkable study" with no significant interval change since a study performed two months previously (id.) The second x-ray report, dated May 3, 1976, also concerns a study of plaintiff's left knee. This report, in its entirety, reads as follows:

 
The patella view does not demonstrate any abnormalities of the articulating surface of the posterior patella. The sunset view was unfortunately obtained with a low contrast technique. There is a suggestion of two radiodensities, immediately above and slightly lateral to both tibial spines in the intercondylar notch. These may be artifactual. They are not visible on other projections obtained some days ago.
 
CONCLUSIONS: Two tiny densities on the femoral tunnel are seen, which may well be loose bodies.

 (Tr. 140).

 Bernard Orr, a vocational expert, also testified at the October 1, 1976 hearing. Orr was asked three hypothetical questions. In the first hypothetical, Orr was asked whether, given plaintiff's age, education and work history, plaintiff could return to any of his former occupations. Orr responded affirmatively, stating that plaintiff could perform his prior work as a stock clerk (Tr. 48). In the second hypothetical, Orr was asked whether, given plaintiff's age, education and work history, and assuming that plaintiff could perform sedentary work, any occupations existed in the region which plaintiff could perform. Orr responded that there were, and he listed as examples: inspector, folder or packer in a garment factory; examiner of cloth in a garment factory; telephone salesperson or bill collector; bench assembler; drill press operator; and ticket taker in an amusement center (Tr. 48-50). Finally, Orr was asked whether, accepting all of plaintiff's complaints, limitations and restrictions, plaintiff could perform sedentary work. Orr again answered yes. According to Orr, plaintiff would have "no real problem with light or sedentary work" because as plaintiff described his own daily activities and abilities, plaintiff could sit and function (Tr. 50).

 On October 1, 1976, ALJ Alan Neff issued his decision determining that plaintiff was ineligible for supplemental security income. With the exception of the two x-ray reports from Philadelphia General Hospital, which were not then in evidence, all of the above-discussed evidence was considered. The ALJ expressly rejected Dr. Ley's conclusion that plaintiff was unable to work because: (1) plaintiff never complained of any difficulties with his back, and (2) Dr. Ley's conclusion was "based entirely on history and subjective symptomology" (Tr. 14). The ALJ also rejected plaintiff's complaints of pain, concluding that "whatever pain the claimant did have either by itself or in conjunction with any other physical disability which claimant may have was not of such severity to prevent him from engaging in substantial gainful activity" (Tr. 14). The ALJ then made the following findings:

 
1. The claimant is 40 years of age, has a high school diploma and has worked as a maintenance man, rigger and stock clerk.
 
2. That the evidence of record does not establish that claimant suffers either singly or in combination from a physical or mental impairment of the severity required by the Act.
 
3. Claimant's symptoms, signs, medication, and treatment received, do not demonstrate that he suffers from a condition of such severity as to prevent claimant from engaging in substantial gainful activity.
 
4. That claimant does not suffer from pain either in itself or in conjunction with other impairments of such severity as to constitute claimant disabled within the meaning of the Act.
 
5. Considering claimant's residual functional capacity, and his age, education and work experience, he is able to return to his previous job as a stock clerk and to perform light and sedentary jobs which include the following representative jobs: inspector, folder or packer, garment industry; salesperson; bill collector; bench assembler; ticket taker; and drill or punch press operator. These jobs exist in significant numbers in the region in which claimant lives as well as several other regions of the country.
 
6. The claimant was not prevented from engaging in any substantial gainful activity for any continuous period beginning on the date of application through the date of this decision.
 
7. The claimant was not under a "disability", as defined in Section 1614(c) (3) (A) of the Social Security Act, as of the date of filing the application for supplemental security income and continuing through the date of this decision.

 (Tr. 15-16).

 ALJ Neff's decision was affirmed by the Appeals Council and became the final decision of the Secretary. Plaintiff then sought judicial review in this court. Although I originally dismissed plaintiff's complaint for lack of jurisdiction (document No. 10), the Court of Appeals vacated the dismissal order and remanded for judicial review of the Secretary's decision. On March 15, 1978, I concluded that ALJ Neff had applied an incorrect legal standard for pain. Accordingly, I remanded the case to the Secretary for ...


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