impeded by medication. Although he ordinarily only takes Aspirin or Tylenol, he sometimes takes Percodan when his pain becomes severe. He claims that he can "move mountains" after taking Percodan; however, he expressed concern about the addictive nature of the drug. Plaintiff does not wear a brace or use a cane to walk.
The standard of review to be applied in this case is whether there is substantial evidence in the record to support the Secretary's decision. 42 U.S.C. § 405(g); Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988). "Substantial evidence" is "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). More than a mere scintilla of evidence is required to satisfy this standard of review; however, the evidence need not reach the level that is required to satisfy a "preponderance" standard. Stunkard v. Secretary of Health & Human Services, 841 F.2d 57, 59 (3d Cir. 1988).
A Social Security claimant can qualify for disability benefits if he shows some "medically determinable basis for 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); 42 U.S.C. § 423(d)(1) (1982). If claimant suffers from a severe impairment not listed at 20 CFR pt. 404, subpt. P., App. 1, but does show that his impairment is so severe that he is unable to return to his past relevant work, the burden shifts to the Secretary to "demonstrate that given the claimant's age, education, and work experience, the claimant is capable of performing substantial gainful work activity in the national economy." Stunkard 841 F.2d at 59.
In the instant case, the burden of proof shifted to the Secretary after the ALJ concluded that Plaintiff cannot perform his past relevant work. Subsequent to that determination, the ALJ concluded that Plaintiff was capable of performing substantial gainful work activity in the national economy. For the following reasons, I conclude that there is substantial evidence in the record to support the ALJ's final decision.
It is the Secretary's duty to make a final determination of disability when presented with conflicting medical evidence. Richardson v. Perales, 402 U.S. 389, 399, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971); Evosevich v. Consolidated Coal Co., 789 F.2d 1021, 1027-1028 (3rd Cir. 1986). In the case at bar, the ALJ considered all of the conflicting medical evidence, as well as the evidence of subjective symptomatology, in reaching his decision.
The ALJ was not persuaded by the testimony of Dr. Eshleman, Plaintiff's treating physician, since Dr. Eshleman did not supply objective data to support his opinion that Plaintiff is unable to work. (R. 178). In contrast, Dr. Jaffari and Dr. Izzo supplied supporting evidence. I am mindful that the opinion of Plaintiff's treating physician is entitled to great weight; however, Dr. Eshleman's conclusion that Plaintiff is disabled "represents a legal conclusion" which he is not qualified to make. Cullotta v. Bowen, 662 F. Supp. 1161 (N.D. Ill. 1987).
The ALJ also found that because of inconsistent evidence, Plaintiff's allegations of severe and disabling pain lasting from three days to six weeks were not fully credible. Although Plaintiff alleges that his pain renders him disabled, he walked into the offices of both Dr. Jaffari and Dr. Izzo with a normal gait and got on and off the examining table without difficulty. Plaintiff claimed, on three different occasions, to be experiencing back pain: (1) in his Disability Report (signed and dated 12/13/85); (2) in his Reconsideration Disability Report (signed and dated 2/19/86); and (3) in his Statement requesting a disability hearing (signed and dated 7/29/86). However, in April 1986 Dr. Izzo reported that "[Plaintiff] does not complain of any back pain at this time nor does he have any back pain when he has these episodes." R. 152.
Other evidence undercuts Plaintiff's credibility. For example, his lumbar flexion extension test results provided by both Dr. Jaffari and Dr. Izzo, R. 149, 152, conflict with Plaintiff's own testimony that he is unable to bend at the waist without support. It is well settled that credibility determinations are for the Secretary, not the courts to make. Bloodsworth v. Heckler, 703 F.2d 1233 (3d Cir. 1983). I conclude that the ALJ's determination of credibility is supported by substantial evidence.
Plaintiff also objects to the hypothetical question posed to the vocational expert by the ALJ as requested by the Appeals Council. Plaintiff contends that this hypothetical question was defective since the information given to the expert did not include the fact -- as alleged by Plaintiff -- that his condition causes him to be nearly bedridden for extended periods of time. I disagree. A hypothetical question need only reflect each of a claimant's impairments that are supported by objective medical findings in the record. Chrupcala v. Heckler, 829 F.2d 1269 (3d Cir. 1987). Plaintiff's allegation of episodic pain lasting from three days to six weeks, however, is not supported by objective evidence.
Accordingly, the hypothetical question posed to the vocational expert was not defective.
Finally, Plaintiff contends that the ALJ had no basis for finding that certain jobs, listed by the vocational expert as those which Plaintiff can perform, exist in "significant numbers." Plaintiff misreads the ALJ's opinion, however. The list includes examples of jobs that can be performed by Plaintiff. The ALJ accepted them as such, noting, however, "a 'significant' number of jobs in the national economy that the claimant has been capable of performing . . . ."
I conclude that the decision of the Secretary is supported by substantial evidence in the record. Therefore, Plaintiff's motion for summary judgment will be denied, and defendant's motion for summary judgment will be granted.
An appropriate order follows.
AND NOW, this 28 day of NOVEMBER, 1988, upon consideration of the parties' cross motions for summary judgment and after careful review of the record, it is hereby
1) the plaintiff's motion for summary judgment is DENIED;
2) the defendant's motion for summary judgment is GRANTED.