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ROSS v. SCHWEIKER SECY. OF HHS

June 27, 1983

ROBERT ROSS
v.
RICHARD S. SCHWEIKER, Secretary of Health and Human Services



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 This action is brought under 42 U.S.C. §§ 405(g) and 1383(c)(3) to review the Secretary's final decision denying plaintiff's claim for disability benefits under Title II and Title XVI of the Social Security Act. Upon their own motion the Appeals Council reviewed the Administrative Law Judge's (ALJ) October 21, 1981 decision in favor of the plaintiff and reversed, finding that the plaintiff was not disabled. This January 20, 1982 Appeals Council decision is the final decision of the Secretary that is before the Court on cross-motions of the parties for summary judgment. *fn1"

 The record shows that plaintiff, Robert Ross, was born on October 4, 1927. He has a college degree in marketing and worked as a Director of Marketing and as an advertising executive for several concerns between 1957 and 1978. He has been unemployed since August 1978. Mr. Ross' physical problems began in 1974 when he underwent surgery for cancer of the hip. He has since undergone eight additional operations for melanoma of the hip, kidney stones, and malignant melanoma of the chest wall. His last surgery was in 1978.

 Mr. Ross has suffered from depression since 1974 when his wife divorced him and he lost his job. Since losing his job in 1974 Mr. Ross has worked only for a period of 5 months in 1978. He has been seeing a social worker regularly since 1979 and has been examined by several psychiatrists regarding emotional and social problems. Mr. Ross is taking medication for depression, water retention, insomnia and hives. On October 15, 1979 Mr. Ross applied for disability due to cancer of the chest, cirrhosis of the liver, kidney problems and his mental condition. Since then he has also complained of hip pain, dizziness, nausea and abdominal pain.

 The issue presented by this review is whether the Secretary's finding that Mr. Ross failed to establish a physical or mental impairment which prevents him from engaging in any substantial gainful activity is supported by substantial evidence. The Court has determined that this record contains substantial evidence supporting the Secretary's final decision, and will therefore grant defendant's motion for summary judgment and will deny plaintiff's cross-motion for summary judgment.

 The Social Security Act limits judicial review of disability claims to the Secretary's final decision. 42 U.S.C. §§ 405(g) and 1383(c)(3). If the finding of the Secretary is supported by substantial evidence it is conclusive and must be affirmed by the court. 42 U.S.C. § 405(g). Substantial evidence is such relevant evidence which a reasonable mind would accept as sufficient to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir. 1979); Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972).

 Under the Act, the plaintiff has the burden of establishing a disability as defined by the Act. Hess v. Secretary of Health, Education and Welfare, 497 F.2d 837, 840 (3d Cir. 1974). In order to carry this burden, the plaintiff must meet a two-fold test. First, he must have a medically determinable physical or mental impairment. The statute defines a medically determinable impairment as one that results from an anatomical, physiological, or psychological abnormality which is demonstrated by medically accepted clinical or laboratory diagnostic techniques. 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(C). Second, the impairment must prevent the plaintiff from engaging in any substantial gainful activity. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); Hargenrader v. Califano, 575 F.2d 434, 436 (3d Cir. 1978); Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). There are four elements of proof to be weighed in determining whether there is substantial evidence to support the Secretary's decision: (1) medical data and findings; (2) expert medical opinions; (3) subjective complaints; and (4) the plaintiff's age, education, and work history. Blalock at 776.

 Mr. Ross presented a long series of physical and psychiatric examinations and opinions covering the period from 1978 to 1980. The ALJ then requested and received two additional examinations: a psychiatric examination from Dr. John Bok, and a physical examination from Dr. Albert Fornace. These examinations took place in the summer of 1981. Mr. Ross also has a history of surgery beginning in 1974.

 In their lengthy opinion the Appeals Council specifically refers to and analyzes the reports of the last five doctors who examined Mr. Ross physically and five separate opinions regarding Mr. Ross' psychological limitations. We too have carefully analyzed these reports to determine whether they amounted to substantial evidence to support the Secretary's finding. Since both Mr. Ross' physical and psychological abilities are in question, an analysis of each is in order.

 Initially, Mr. Ross claimed physical impairment due to chest cancer, cirrhosis of the liver, and kidney stones. He has also complained to examining physicians of pain around the areas of his incisions and abdominal pain. To both the physicians and the ALJ, Mr. Ross stated that he experienced pain in his right hip which limits his ability to walk. While subjective complaints of pain, unaccompanied by objective medical data, may support a claim for disability, the claimant still must satisfy his burden of proof. Bittel v. Richardson, 441 F.2d 1193 (3d Cir. 1971). The record in this case, however, contains many medical findings which the Appeals Council found did not substantiate Mr. Ross' claims of physical disability.

 There is no medical evidence of continuation of chest cancer in Mr. Ross. A radiology exam taken in October 1978 revealed no unusual problems in the chest cavity. Though Mr. Ross was at one time diagnosed as having cirrhosis of the liver, his personal physician stated that the diagnosis had been changed and Mr. Ross does not have cirrhosis. His kidney stones have been surgically removed and the last three medical reports make no mention of kidney problems. None of the doctors found the complained of incisional pain to be severe or extraordinary.

 Dr. Elihu Goren examined Mr. Ross in January of 1980 in regard to his physical disability claim. Dr. Goren reported that Mr. Ross had a reasonably good exercise tolerance and that "it was difficult to find exactly what the physical limitations [were for Mr. Ross]." Dr. Donald Sesso also examined Mr. Ross in 1980 and "did not find any major, overt, objective physical defects". He found that Mr. Ross was normal on a straight leg raising test and could squat satisfactorily. At the request of the ALJ, Dr. Fornace examined Mr. Ross in 1981. He determined that the pain Mr. Ross experienced in his right hip resulted in a 10% loss of motion in the hip. He found no other significant physical disabilities. These reports and the series of tests accompanying them constitute substantial evidence to support the Appeals Council's decision that Mr. Ross is not physically disabled.

 Though the physicians' reports fail to document a severe physical impairment, each physician remarked on Mr. Ross' emotional status. Several recommended further psychiatric evaluation and alluded to the fact that Mr. Ross' ...


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