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DEMARCO v. HECKLER

August 26, 1985

DEMARCO, MARIE
v.
HECKLER, MARGARET, Secretary of the Department of Health and Human Services



The opinion of the court was delivered by: LUONGO

 Plaintiff in this Social Security action, Marie DeMarco, seeks judicial review of the decision of the Secretary of Health and Human Services denying her application for disability insurance and Supplemental Security Income benefits. The Secretary has filed a motion for summary judgment. Notwithstanding plaintiff's failure to oppose the motion, Magistrate Richard A. Powers, III, has recommended that the motion be denied and the matter remanded for a new administrative hearing. *fn1" Although the Secretary has filed no objections, I find the Magistrate's Report - Recommendation (attached hereto as Appendix A) unacceptable in several respects and, therefore, do not accept the Report - Recommendation as the opinion of this court. I will remand the case for a new administrative hearing, but on grounds much narrower than those set forth in the Magistrate's Report.

 Plaintiff is a 59 year old woman with a high school education. She worked as an ice cream packer for approximately 15 years and has not worked since 1969. She claims to have been disabled since June of 1980 because of Meniere's disease, heart problems, a seizure disorder stemming from a stroke, tuberculosis and a nervous breakdown.

 On March 20, 1984 a hearing was held before an Administrative Law Judge. The ALJ, in a decision dated July 5, 1984, applied the Secretary's five-step disability evaluation procedure as set forth in 20 C.F.R. §§ 404.1520 and 416.920. He found that plaintiff did not suffer from a "severe impairment," and was therefore not disabled under § 404.1520(c) and § 416.920(c). The ALJ's ruling became the final decision of the Secretary when it was adopted by the Appeals Council on September 13, 1984.

  The court's function on review is to determine whether the Secretary's decision is supported by substantial evidence, that is, 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 Magistrate found such evidence lacking for several reasons. First, he asserted that the ALJ failed to evaluate the totality of plaintiff's complaints. Second, he found that the ALJ improperly rejected plaintiff's complaints of pain on the basis of the "sit and squirm" test. Third, he stated that the ALJ should have applied the regulations requiring consideration of plaintiff's advanced age and minimal work experience. See 20 C.F.R. §§ 404.1563-.1565, 416.963-.965.

 With respect to the Magistrate's first point, I conclude that the ALJ properly considered the totality of plaintiff's impairments. Evaluating the medical evidence and plaintiff's testimony, the ALJ found that plaintiff had recovered from some of her ailments and that the others were controllable by medication. Past medical problems and those which are under control are not severe or disabling under the Social Security Act. Bianchi v. Secretary of Health and Human Services, 764 F.2d 44 (1st Cir. 1985); Jackson v. Heckler, 580 F. Supp. 1077, 1079 (E.D.Pa. 1984). If the ALJ is correct in his evaluation of plaintiff's ailments I cannot say that he erred in finding those ailments, individually or in combination, not to be severe. See Bianchi, 764 F.2d at 45; Jackson, 580 F. Supp. at 1078-80. *fn2"

 The question then is whether the ALJ correctly evaluated plaintiff's various impairments. I believe that he did. The ALJ carefully considered the medical evidence as to each of plaintiff's alleged disabilities. Only after determining that the evidence did not support plaintiff's subjective complaints did he consider other factors, including his own impressions as to plaintiff's credibility. The ALJ's conclusion that plaintiff's ailments do not significantly limit her ability to perform basic work activities is supported by substantial evidence.

 Both the medical reports and plaintiff's own testimony show that her tuberculosis was successfully treated. Plaintiff claims to have continuing symptoms of Meniere's disease, including ringing in the ears, dizziness and loss of balance, but specifically stated at the hearing that she is "okay" if she takes her medication. There is no evidence that plaintiff continues to be troubled by nervous depression.

 The ALJ also found that plaintiff's seizure disorder does not constitute a severe impairment. He considered the 1982 report of Dr. Julio Kuperman, plaintiff's attending neurologist, that even with medication plaintiff had episodes of dysphasia which could represent seizures. The ALJ also considered plaintiff's testimony that she had a seizure in 1983. He noted, however, that plaintiff had submitted no documentary evidence of seizure activity since June of 1980, when she was placed on Dilantin to control her seizure disorder.

 The Magistrate asserts that the ALJ, in finding plaintiff's seizure disorder to be controlled, improperly relied upon his own lay observations rather than upon the evidence. I disagree. The weighing of evidence is the province of the ALJ, Arnold v. Heckler, 732 F.2d 881, 883-84 (11th Cir. 1984); Jackson v. Heckler, 580 F. Supp. 1077 (E.D.Pa. 1984), and his conclusion is supported by the record. The only evidence of plaintiff's 1983 seizure is her own testimony. Indeed, she herself testified that the seizure occurred because her seizure disorder. In declaring that plaintiff "had a seizure in 1983 while taking seizure medication," Magistrate's Report - Recommendation at 4, the Magistrate in effect engaged in fact-finding and went beyond this court's limited scope of review.

 Plaintiff also claims to have heart trouble, which causes heaviness and pain in her chest. As the ALJ noted, plaintiff has undergone a series of cardiac tests which have failed to demonstrate the presence of any heart disease. Plaintiff's attending cardiologist, Dr. Pat Procacci, reported in 1981 that plaintiff's chest discomfort responds to medication. Plaintiff testified that she takes Nitroglycerin about once a week, whenever she feels "a slight pain." The ALJ concluded that the evidence would not support a finding that plaintiff had a severe heart impairment.

 After setting forth his conclusions with respect to the medical evidence, the ALJ stated:

 
As to the subjective validity of the complaints, Administrative Law Judges see a lot of genuinely sick people (we grant over 50 percent of all cases) and expect in cases of genuine pain to see some of the stigmata of old, intractable pain such as premature aging, hopeless mien, lines of suffering, and a certain consistency in bodily movements or lack of them. Claimant did not impress as a person who has been disabled for four years by chest pain or other subjective symptoms. Rather, she appeared to be a healthy woman who looked well for her age and took pride in her appearance. Despite recent exaggeration, claimant has admitted to doing light ...

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