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STRACCIOLINI v. HECKLER

June 30, 1986

ALFRED STRACCIOLINI
v.
MARGARET HECKLER, Secretary of Health and Human Services



The opinion of the court was delivered by: HANNUM

 HANNUM, S.J.

 This is an action brought pursuant to 42 U.S.C. § 405(g) and 1383(c)(3), (g) to review a final decision of the Secretary of Health and Human Services, denying disability insurance benefits and supplemental security income to the plaintiff, Alfred Stracciolini. The matter is before this Court by reason of a renewed motion for summary judgment. For the reasons which follow, the plaintiff's motion for summary judgment is denied and the defendant's motion is granted.

 Factual Background

 Plaintiff on April 13, 1981 filed an application for social security disability benefits and supplemental income, alleging onset of disability on November 19, 1980. Plaintiff fell off his truck which he alleges left him unable to work due to an orthopedic injury he sustained to his neck and back. Thereafter, plaintiff's claims for social security disability benefits and supplemental income were both disallowed by a disability examiner who concluded the medical evidence proved he was able to return to work (Tr. 48). A notice of reconsideration from that determination reaffirmed the original disallowance (Tr. 58). Plaintiff made a request for a hearing before an Administrative Law Judge [hereinafter ALJ] on both determinations and a hearing de novo was held. Based on evidence in the record, the ALJ concluded claimant's complaints of severe and constant pain, rendering him unable to perform any type of work, were not credible based on the clinical findings. Although claimant was unable to perform his past relevant work as a truck driver, he had a residual functional capacity to perform work related functions, except those involving a significant degree of exertion. The ALJ therefore concluded that the plaintiff was not disabled within the meaning of 20 C.F.R. §§ 404.1520 (Tr. 18-20). Subsequent thereto, plaintiff filed a request for review with the Appeals Council. This Council concluded there was no basis under the applicable regulations for granting plaintiff's request and held the decision of the ALJ as the final decision of the Secretary (Tr. 3).

 Subsequently, claimant commenced an action in this Court. On the parties' cross motions for summary judgment, Magistrate William F. Hall, Jr., issued a report and recommendation. In his report Magistrate Hall found that the ALJ's decision had not been based on substantial evidence and recommended that motions for summary judgment be denied and that the case be remanded to an ALJ for further review. The ALJ concluded that there was no objective medical evidence to support a finding of orthopedic, neurological, or combination of impairments which would render the claimant disabled from work, not requiring significant bending and reaching. Magistrate Hall disagreed with this conclusion. He also found that the ALJ relied solely on the evidence of one orthopedic surgeon, Dr. Kambin, while rejecting conflicting testimony of another orthopedic surgeon, Dr. Krause, plaintiff's treating physician and two other doctors who examined plaintiff. The ALJ stated no reasons for rejecting such probative evidence which was favorable to the plaintiff. Magistrate Hall concluded that it could not be said that the ALJ based his findings on substantial evidence. Magistrate Hall's recommendation was that the ALJ consider plaintiff's subjective complaints of pain in light of the medical evidence presented. Plaintiff's complaints of pain should also be considered together with his physical impairments and his anxiety disorder. He further requested that the ALJ distinguish the medical evidence of two doctors, Dr. Kambin and Dr. Krause, which he found that the ALJ confused. Thereafter, this Court approved and adopted this report and recommendation and remanded the case to the Secretary for further proceedings consistent with the Magistrate's report.

 Pursuant to this Court's Order of Remand, a supplemental hearing was held before an ALJ which plaintiff attended and at which a vocational expert testified (Tr. 179-227). The vocational expert was asked a hypothetical question based on the record as to whether plaintiff would be able to perform unskilled light work in light of his present impairments. He responded affirmatively and specifically stated that jobs such as marker, sorter and checker would be appropriate. Due to the repetitive nature of these jobs, it could be learned in less than thirty days. (Tr. 218). Thereafter, the ALJ issued a recommended decision denying plaintiff's entitlement to social security benefits. An appeal of that decision was taken to the Appeals Council which adopted the recommendation of the ALJ with some modification. The Secretary's holding that benefits are not payable to plaintiff under the Social Security Act became final on August 17, 1985 (Tr. 149).

 Scope of Review

 In reviewing final determinations by the Secretary after an administrative hearing, courts are bound by the Secretary's findings of fact if they are supported by "substantial evidence " 42 U.S.C. §§ 405(g) (Supp. v. 1981), 1383(c)(3)(1976). Substantial evidence has been defined as such evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971). Substantial evidence 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).

 This Court is bound to "scrutinize the whole record to determine whether the Secretary's findings have rational support in the evidence relied upon, and if reliance is placed on one portion of the record in disregard to overbalancing evidence to the contrary, the Court may then interfere with the Secretary's conclusion." Hofacker v. Weinberger, 382 F. Supp. 572 (S.D.N.Y. 1974). The decision of the ALJ cannot be held to be supported by the required degree of substantial evidence unless the ALJ considers all the claimant's impairments singly and in combination. Brittingham v. Weinberger, 408 F. Supp. 606 (E.D.Pa. 1976).

 Discussion

 "Disability" is defined in the Act as any medically determinable physical or mental impairment, 42 U.S.C. § 423(d)(1)(A), which is so severe that the claimant is not only unable to do his previous work, but cannot, considering his age, education and work experience, engage in any kind of substantial work which exists in the national economy. Work which exists in the national economy means work which exists in significant numbers either in the region where such individual lives or in several regions of the country. 42 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(A). The Act further defines a medically determinable impairment as one that results from anatomical, physiological or psychological abnormalities which are demonstrated by medically acceptable clinical and laboratory diagnostics techniques. 42 U.S.C §§ 423(d)(3) and 1382c(a)(3)(C) (1976). Under the Act, the burden of proof as to the medical basis of a finding of disability remains on the claimant at all times, both in the initial proceeding to establish disability and in a subsequent termination proceeding. Torres v. Schweiker, 682 F.2d 109, 111 (3d Cir. 1982), cert. denied, [ 459 U.S. 1174] 103 S. Ct. 823 [74 L. Ed. 2d 1020] (1983).

 In assessing a disability claim, factors to be taken into account are: 1) the objective medical facts; 2) the diagnosis and expert opinions of treating and examining physicians on subsidiary questions of fact; 3) subjective evidence of pain testified to by the claimant and corroborated by family and neighbors; 4) the claimant's educational background, work history and present age. Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972); Underwood v. Ribicoff, 298 F.2d 850, 851 (4th Cir. 1962).

 In this case, the Secretary concluded that the plaintiff's medical impairments, (lumbar and cervical sprains with lumbar radiculopathy, anxiety and ulnar neuritis with paresthesia of the ring and little finger of his left hand), when considered singly and in combination with other factors, did not, prevent plaintiff from performing sedentary work activity. ...


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