functional capacity and the effect of her pain on her ability to perform various work activities. The ALJ noted that plaintiff testified that although she suffers from pain, she is capable of maintaining her home such as dusting, making the bed and straightening the house (Tr. 186). She further testified that she is able to go shopping on a weekly basis (Tr. 189). She attempted to underscore the minimal level of activity by commenting that what she can do "isn't too much." (Tr. 186).
Towards the end of the supplemental hearing, on direct questioning by the ALJ, the plaintiff admitted having looked for work from February 1983 onward. The plaintiff admitted that she obtained a job as a sales clerk of ladies clothing in the latter part of 1983, that she worked from October 1983 through about June 1984, that she then took off six or seven weeks, and that she then returned to the same job and was working as of the date of the hearing. Throughout this period, she has worked three days weekly, seven hours per day, earning $ 3.35 an hour. In addition, she conceded that she also receives commissions amounting to 5 percent of sales, which average $ 40.00 to $ 50.00 weekly. In her job she carries clothing, including winter coats, to and from racks and helps customers try on these garments (Tr. 212-214).
In addition to working from October 1983 to the time of the hearing on October 28, 1984, plaintiff applied for and collected unemployment in 1981 which required her to sign a card indicating that she was ready, able, and willing to work (Tr. 224). She attended a computer school full-time, five days a week, for 3 1/2 months in the fall of 1981 until her husband told her he needed her at home (Tr. 224-225); at which time she stayed home to take care of her husband until he died in December of 1982 (Tr. 226).
The fact that a person cannot work without some pain does not in itself establish disability. In determining that plaintiff's pain and other impairments did not prevent her from performing her past relevant work, the ALJ found that plaintiff's subjective complaints of pain were not credible. Although such complaints must be seriously considered, Green v. Schweiker, 749 F.2d 1066 (3rd Cir. 1984), they are not conclusive, and may be rejected if they are "grossly disproportionate to the medical findings." Sheridan v. Schweiker, C. A. No. 82-0269, slip op. at 11 (E.D. Pa. Nov. 6, 1985). The Third Circuit only holds that complaints of pain must be given serious consideration. Smith v. Califano, 637 F.2d 968 (3rd Cir. 1981); Bittel v. Richardson, 441 F.2d 1193 (3rd Cir. 1971). Rather, the degree of a claimant's pain must be so severe and continuous as to render the claimant incapable of performing any occupation suitable to the claimant's age, education, work experience and residual functional capacity. Murphy v. Schweiker, 524 F. Supp. 228, 232 (E.D. Pa. 1981). See 20 C.F.R. § 404.1529. The burden is on the claimant to satisfy the factfinder that the pain is real and of disabling severity. Torres v. Harris, 494 F. Supp. 297 (E.D. Pa. 1980), aff'd 659 F.2d 1071 (3rd Cir. 1981); Bittel, supra at 1195.
Where subjective symptoms such as pain or discomfort are involved, the possibility of fabrication or exaggeration by the claimant cannot be overlooked. See Baith v. Weinberger, 378 F. Supp. 596 (E.D. Pa. 1974). The ALJ had to "gauge the credibility and weight of the subjective testimony against the other evidence in the record, including adverse objective medical findings, diagnoses, and expert medical opinions." Torres v. Harris, supra at 300. The ALJ may reject the claimant's unsupported assertions of disabling pain if he finds them to be not credible, Farmer v. Weinberger, 368 F. Supp. 1 (E.D. Pa. 1973), and if the reasons therefore affirmatively appear in the administrative record. Baerga v. Richardson, 500 F.2d 309 (3rd Cir. 1974); cert. denied, 420 U.S. 931, 95 S. Ct. 1133, 43 L. Ed. 2d 403 (1975), Saldana v. Weinberger, 421 F. Supp. 1127 (E.D. Pa. 1976).
We must be ever mindful that it is the ALJ's responsibility to resolve conflicts in the evidence and to determine credibility and the relative weights to be given evidence. Richardson v. Perales, supra at 399 (1971). The ALJ's conclusions must be accepted unless they are without basis in the record; Torres v. Harris, supra, and inasmuch as he has had the opportunity to observe demeanor and determine credibility, his judgment on these matters should be given great weight. Davis v. Califano, 439 F. Supp. 94, 98 (E.D. Pa. 1977).
The ALJ based his decision that plaintiff's pain was not disabling and that her other impairments did not prevent her from performing her past work as a sales clerk not only on her own testimony at the hearing concerning her daily activities and her lack of complete candor, but on the medical evidence presented by the plaintiff. (Tr. 157-160). Although plaintiff presented medical evidence as to a condition which could produce pain including reports of moderately advanced degenerative changes of the lumbar spine and degenerative joint disease of the cervical spine, (Tr. 103-107, 119, 121-122, 191-192, 247-280), and that these degenerative changes result in pain as evidence in the December 4, 1984 thermogram which suggested marked L-3 and L-4 nerve root irritation (Tr. 282), there was also objective medical evidence indicating that plaintiff's pain was not as severe as alleged (Tr. 106-110, 110-124, 128-129, 159, 278-279).
After a thorough review of the ALJ's opinion and the medical evidence of record, it appears that the plaintiff's own testimony as to her daily activities is inconsistent with her complaints of disabling pain, and therefore the Administrative Law Judge properly found her testimony not to be credible. Thus, the Administrative Law Judge fulfilled his duty under Brittingham v. Weinberger, 408 F. Supp. 606, at 613 (E.D. Pa. 1976) which requires an ALJ to make specific findings concerning the credibility of a plaintiff's complaints of pain, where there is medical evidence substantiating the complaints. The issue of pain is affirmatively addressed in the ALJ's decision, his reasons for rejecting it are amply set forth, and his conclusion is supported by substantial evidence.
If a claimant performs work during any period in which she alleges that she was disabled, the work performed may demonstrate that she is able to engage in substantial gainful activity. 20 C.F.R. § 404.1571 provides that:
The work that you have done during any period in which you believe you are disabled may show that you are able to do work at the substantial gainful activity level. If you are able to engage in substantial gainful activity, we will find that you are not disabled. (We explain the rules for persons who are statutorily blind in § 404.1584. Even if the work you have done was not substantial gainful activity, it may show that you are able to do more work than you actually did. We will consider all of the medical and vocational evidence in your file to decide whether or not you have the ability to engage in substantial gainful activity.
The general and common sense rule is that the Secretary can consider work done by the claimant after the alleged onset of disability as tending to show that the claimant was not then disabled. Sigmon v. Califano, 617 F.2d 41 (4th Cir. 1980); Goldstein v. Harris, 517 F. Supp. 1314 (S.D.N.Y. 1981). The ALJ properly concluded that plaintiff's employment from October 1983 to the time of the hearing constituted substantial gainful activity as defined in 20 C.F.R. § 404.1571-1574 and that plaintiff was not disabled during this period. The ALJ, furthermore, did not err in using plaintiff's work activity during this period and her prior attendance at computer school together with the care of her dying husband concluding that plaintiff's allegations of severe pain was not credible and that she was not disabled during the time from the date of her alleged onset of disability and the time she resumed work in October of 1983.
Plaintiff's counsel contends that regulation 20 C.F.R. § 404.1563(d) is fully applicable to plaintiff's case and mandates a finding of disabled. The regulation provides:
(d) Person of advanced age. We consider that advanced age (55 or over) is the point where age significantly affects a person's ability to do substantial gainful activity. If you are severely impaired and of advanced age and you cannot do medium work (see § 404.1567(c)), you may not be able to work unless you have skills that can be used in (transferred to) less demanding jobs which exist in significant numbers in the national economy. If you are close to retirement age (60-64) and have a severe impairment, we will not consider you able to adjust to sedentary or light work unless you have skills which are highly marketable.
However, in this case the ALJ found that plaintiff was not disabled based on step four of the five-step process of 20 C.F.R. § 404.1520 as he determined that at all relevant times, plaintiff retained the ability to return to her past work as a sales clerk. Since it was found that plaintiff could perform the work which she had performed in the past, there was no need to determine whether there existed other jobs which plaintiff could perform. Section 404.1563(d) therefore is not applicable in this case. See specifically 20 C.F.R. § 404.1560(b) and 1561.
Plaintiff's counsel also contends that plaintiff's testimony of severe, unrelenting pain and inability to stand, walk, or sit for any length of time without pain was supported by both treating and consulting medical sources and shows that the ALJ's conclusion that plaintiff can perform light work is clearly unreasonable. Although there is medical evidence that plaintiff's degenerative changes produce pain, the plaintiff's own testimony concerning her physical activities demonstrates that the pain was not as severe as alleged and that she was capable of performing her past work as a sales clerk. The medical evidence presented by plaintiff, although establishing a condition that could produce pain, does not demonstrate that the pain is of a severity alleged by the plaintiff and that it prevents plaintiff from performing work as a sales clerk.
Counsel contends that the plaintiff's return to work three days a week "was a direct result of financial difficulty, which could have been alleviated had the Secretary properly ruled on plaintiff's claims at the first administrative hearing in April, 1982." The Secretary, as well as this court, although sympathetic to her situation, is unconcerned with the reasons why she returned to work. The important fact is that plaintiff was physically capable of returning to substantial gainful employment. It is easy to picture a great number of able-bodied individuals deciding not to work if it were not financially necessary for them to do so.
Plaintiff has failed to meet her burden of proof that she suffers from such severe pain that she was prevented from working as a sales clerk during all relevant times. The ALJ's conclusion that plaintiff's pain combined with degenerative joint disease and obesity did not prevent her from performing substantial gainful activity is also supported by substantial evidence. Plaintiff has therefore failed to satisfy her initial burden that she was prevented from returning to her past work prior to her eventual return to work in October of 1983. It is therefore concluded that the Secretary's final decision that the plaintiff is not disabled is supported by substantial evidence and must be affirmed.
Accordingly, this United States Magistrate makes the following:
NOW, this 31st day of January, 1986, IT IS RESPECTFULLY RECOMMENDED that the plaintiff's motion for summary judgment be Denied and the defendant Secretary's motion for summary judgment be Granted. IT IS FURTHER RECOMMENDED that the final decision of the defendant Secretary denying the plaintiff's claim for disability insurance benefits under Title II of the Social Security Act be Affirmed.