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May 31, 1988

Dominick A. Spada
Otis R. Bowen, M.D., Secretary of Health and Human Services

The opinion of the court was delivered by: WEINER


 This action was brought under 42 U.S.C. § 405(g) (the "Act") seeking judicial review of a final decision of the Secretary of Health and Human Services ("Secretary"), denying plaintiff's claim for disability insurance benefits ("DIB"). Presently before the court are cross-motions for summary judgment. For the reasons which follow, we grant the motion of the Secretary and deny the motion of the plaintiff.


 Plaintiff filed an application for DIB on January 25, 1984 alleging disability due to a back condition (Tr. 67-70). The application was denied initially and on reconsideration. This denial was made after the Pennsylvania State Agency, upon evaluation of the evidence, found that plaintiff was not disabled within the meaning of the Act (Tr. 71, 74). The first Administrative Law Judge ("ALJ") before whom plaintiff initially appeared considered the case de novo, and on December 17, 1984, determined that plaintiff was entitled to a period of disability commencing January 1984, but not prior thereto (Tr. 22-23). Thereafter, the Appeals Council denied plaintiff's request for review, so that the first ALJ's decision became final on July 23, 1985 (Tr. 4). Plaintiff then filed a complaint for the purpose of obtaining judicial review in this court. By order dated October 17, 1985, this court remanded the case to the Secretary for review of issues relating to the onset of plaintiff's impairments. The Appeals Council remanded the case to an ALJ, and on April 21, 1986 a supplemental hearing was conducted before a second ALJ. The ALJ concluded on July 1, 1986 that plaintiff retained the residual functional capacity for light work, and based upon plaintiff's age, education, work experience, 20 C.F.R. § 404.1569 and Rules 202.12 and 202.03, Table No. 2, Appendix 2, Subpart P, Regulations No. 4, found plaintiff not disabled (Tr. 317-318). Thereafter, the Appeals Council re-remanded the case to the ALJ for presentation of expert testimony. Hearings were conducted and additional evidence was submitted and incorporated into the file. The ALJ then rendered a second decision, again denying plaintiff benefits in toto (Tr. 283-284). On December 4, 1987, the Appeals Council adopted the findings of the ALJ so that the Secretary's decision again became final. Subsequently, the parties to this action stipulated that plaintiff was disabled as of January 1984, but not prior thereto, *fn1" which stipulation was approved by this court on February 23, 1988.


 Our standard of review in this case is whether there is substantial evidence in the record to support the Secretary's decision. Stunkard v. Secretary of Health and Human Services, 841 F.2d 57, 59 (3d Cir. 1988); Doak v. Heckler, 790 F.2d 26, 28 (3d Cir. 1986). Substantial evidence has been defined as "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)). It is more than a mere scintilla of evidence but may be less than a preponderance. Stunkard, 841 F.2d at 59.

 A person seeking social security disability benefits must demonstrate that he suffers from "an impairment that prevents him from engaging in 'any substantial gainful activity' for a statutory twelve-month period." Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987) (quoting 42 U.S.C. § 423(d)(1) (1982)). He must show that there is a medically determinable basis for impairment. Kangas, 823 F.2d at 777.

 A claimant may make such a showing in one of two ways. First, he can introduce medical evidence that he suffers from one or more of the serious impairments delineated in 20 C.F.R. Part 404, Subpart P, Appendix 1 (1987). If he can demonstrate that he suffers from one of the "listed" impairments, he is considered disabled per se. Kangas, 823 F.2d at 777. Second, a claimant can demonstrate that although he does not suffer from a "listed" impairment, he has an impairment severe enough that he can not engage in any "substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). After careful review of the record, plaintiff's and defendant's motions and supporting memoranda, we find that in making the decision that plaintiff was not disabled before January 1984, the Secretary did consider all relevant factors and that the decision is supported by substantial evidence.

 When reviewing a disability case, the ALJ must follow a five-step sequential decision-making process. Santise v. Schweiker, 676 F.2d 925, 927 (3d Cir. 1982); see 20 C.F.R. § 404.1520. Initially, the ALJ ascertains whether the applicant is currently working; if so, the claim is denied. Id. at § 404.1520(b). Second, the ALJ determines whether the claimed impairment is "severe", by using medical evidence to establish whether plaintiff's impairment is of a magnitude sufficient to significantly limit his "physical or mental ability to do basic work activities"; if it is not, the claim is denied. Id. at § 404.1520(c). Third, the ALJ decides, again using only medical evidence, whether the impairment equals or exceeds in severity certain impairments described on Appendix 1 of the regulations; if it does, the claimant is automatically awarded disability benefits. Id. at § 404.1520(d). Fourth, the ALJ considers whether the applicant has sufficient "residual functional capacity" -- defined as that which an individual can still do despite his limitations - to perform his past work; if so, the claim is denied. Id. at § 404.1520(c), see Id. at § 404.1520(a). Finally, the ALJ adjudicates on the basis of the claimant's age, education, work experience, and residual functional capacity, whether the applicant can perform any other substantial gainful work within the economy. Id. at § 404.1520(f). If the ALJ finds that a claimant is disabled or is not disabled at any point in this process, the review is terminated. Id. at § 404.1520(a).

 Finally, in determining whether a claimant is capable of performing any substantial gainful employment activity, the ALJ must consider four elements of proof: (1) the objective medical facts or clinical findings; (2) diagnosis of examining physicians; (3) subjective evidence of pain and disability; and (4) the claimant's age, education and work history. Boyd v. Heckler, 704 F.2d 1207, 1210 (11th Cir. 1983).


 Plaintiff, Dominick Spada, was born on October 6, 1929 (Tr. 32). He has a sixth grade education (Tr. 34) and work experience as a truck driver (Tr. 36). Mr. Spada alleges that he became disabled as of January 1982 as a result of a fall on the ice in 1978, which necessitated surgery and a nine (9) month absence from work, and an accident which occurred in the loading area where he worked in December, 1981 (Tr. 359-360, 365).

 At the hearing before the first ALJ plaintiff testified that he has not worked since January, 1982 (Tr. 38). Plaintiff testified that his job as a truck driver consisted of driving within a 300 mile radius and unloading and supervising the unloading of transported materials (Tr. 36). Although plaintiff was not responsible for loading the trucks, sometimes he would be required to carry cartons weighing approximately 30 to 70 pounds (Tr. 37). There were also times when ...

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