Capoferri v. Harris, Civ. A. No. 79-2930.

• Decision Date: 14 July 1980
• Docket Number: Civ. A. No. 79-2930.
• Parties: Theodore CAPOFERRI v. Patricia R. HARRIS, Secretary of Health, Education and Welfare.
• Court: U.S. District Court — Eastern District of Pennsylvania

501 F. Supp. 32

Theodore CAPOFERRI v. Patricia R. HARRIS, Secretary of Health, Education and Welfare.

Civ. A. No. 79-2930.

United States District Court, E. D. Pennsylvania.

July 14, 1980.

COPYRIGHT MATERIAL OMITTED

Allan B. Greenwood, Phoenixville, Pa., for plaintiff.

Alexander Ewing, Jr., Asst. U.S. Atty., Philadelphia, Pa., for defendant.

MEMORANDUM AND ORDER

GILES, District Judge.

In this action, filed pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. 405(g), plaintiff, Theodore Capoferri, seeks review of the final decision of defendant, Secretary of Health, Education and Welfare ("Secretary") denying his claim for a period of disability and disability insurance benefits. Defendant has moved for summary judgment. Plaintiff has filed a motion for remand for the taking of additional evidence. The issues before the court are (1) whether there is substantial evidence to support the Secretary's final decision, and (2) whether plaintiff has established "good cause" for remand.

For the reasons set forth below, the court grants defendant's motion for summary judgment and denies plaintiff's motion for remand.

Plaintiff, a fifty-nine year old man, filed an application for disability benefits on April 24, 1978, alleging that he has been disabled since December 1, 1973. Having last met the earnings requirement for purposes of entitlement to disability benefits in September, 1974, the relevant period of alleged disability is December 1, 1973, to September 30, 1974, when plaintiff was approximately fifty-three years old. Initially, plaintiff's claim was denied, and again, on reconsideration by the Pennsylvania state agency. He thereafter requested an administrative hearing, which was held before an Administrative Law Judge ("ALJ") on April 10, 1979. Plaintiff appeared at the hearing, accompanied by his wife and represented by counsel.

The ALJ entered an opinion on April 27, 1979, finding that plaintiff was not disabled. This became the final decision of the Secretary when the Appeals Council refused plaintiff's request for review of the administrative hearing decision.

During the period in question, plaintiff was fifty-three years old. He had a ninth-grade education and was employed as a house painter from 1943, when he was discharged from the Army, until 1973. In that last five-year period, 1968-1973, plaintiff was self-employed because he felt unable to work fulltime for contractors.

The medical evidence may be briefly summarized as follows:

Between 1966 and 1968, plaintiff was treated for a cervical arthritis condition by Dr. W. Glocher. This medical condition was improved through traction and use of the drug Butazolidin. In a medical report dated September 21, 1971, Dr. N. Hauser, a radiologist, stated that x-rays of plaintiff showed marked right rotary scoliosis of the lumbar spine and evidence of degenerative disc disease. On October 6, 1971, Dr. Robert J. Byrne reported that a recent examination of plaintiff had indicated a range of motion of the lumbar spine limited to 50% of normal, an ability to bend forward to within eight to ten inches of the floor, and hyperextension limited to 30% to 40% of normal. Plaintiff acknowledged in the medical history that he had always had curvature of the back and had long had discomfort in that area. His right leg was noted to be ¾ inch shorter than his left leg. Dr. Byrne's prognosis was that the scoliosis was permanent and the disc problem was progressive.

There was no further medical evidence until 1978. In April of that year, plaintiff was hospitalized for severe low back pain. Dr. Elliot Menkowitz, an orthopedic surgeon, noted that plaintiff had a long history of back problems with no specific injury. X-rays showed degenerative arthritis. A myelogram was negative except for spondylitic ridging. The diagnosis was made of left inguinal hernia and scoliosis. Plaintiff was treated for his condition and discharged in improved condition, with a prescription for the medicines Tylenol and Nalfon.

Plaintiff contends that his condition of right rotary scoliosis and degenerative disc disease rendered him disabled beginning December 1, 1973, and that the adverse finding of the Secretary was not based on substantial evidence, the ALJ conducted his hearing in a prejudicial manner, and additional evidence in the form of five sworn statements (one from the Montgomery County Clerk of Court, three from former employers, and one from Dr. Elliot Menkowitz) warrants a remand.

Section 205(g) of the Social Security Act provides that "the findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. 405(g). Judicial review of the Secretary's factual determinations is limited solely to ascertaining whether they are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971), and if so, the Secretary's decision must be affirmed even though the record may also support a contrary conclusion. DeNafo v. Finch, 436 F.2d 737 (3d Cir. 1971). However, the reviewing court has a duty to make a searching investigation of the record in order to determine whether the Secretary's decision is supported by substantial evidence and whether it was made in accordance with the proper legal standards. Gold v. Secretary of Health, Education & Welfare, 463 F.2d 38 (2d Cir. 1972). See also Lincovich v. Secretary of Health, Education & Welfare, 403 F.Supp. 1307 (E.D.Pa.1975). The Supreme Court has characterized substantial evidence as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. at 401, 91 S.Ct. at 1427.

In this case, the definition of disability as contained in the Social Security Act provides the correct legal standard. 42 U.S.C. § 423 (1976) reads, in pertinent part:

(d)(1) The term "disability" means-

(A) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months;

. . . .

(B) ...

(2) For purposes of paragraph (1)(A)—

(A) an individual ... shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), "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.

(B) ...

(3) For purposes of this subsection, a "physical or mental impairment" is an impairment that results from anatomical, physiological or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.

(4) The Secretary shall by regulations prescribe the criteria for determining when services performed or earnings derived from services demonstrate an individual's ability to engage in substantial gainful activity. Notwithstanding the provisions of paragraph (2), an individual whose services or earnings meet such criteria shall, except for purposes of section 422(c) of this title, be found not to be disabled.

(5) An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Secretary may require.

It should be noted that the presence of a disease does not establish disability within the Act. The applicant must also present evidence that his impairment rendered him unable to engage in any substantial gainful employment before the expiration of his insured status. Gardner v. Richardson, 383 F.Supp. 1, 4 (E.D.Pa.1974). Further, a medical condition which begins during a claimant's insured period, but does not become disabling until after its expiration, may not be the basis for qualification for disability benefits under the Act. Capaldi v. Weinberger, 391 F.Supp. 502, 503 (E.D.Pa.1975). The claimant bears the burden of proof in establishing disability within the meaning of the Social Security Act, § 223(d)(5), 42 U.S.C. § 423(d)(5). Harkin v. Califano, 453 F.Supp. 29 (E.D.Pa.1978). Once a claimant meets his burden to show that he cannot return to his former occupation, the burden shifts to the Secretary to show that the claimant, given his age, education, and work experience, has the capacity to perform specific jobs which exist in the national economy. However, the burden is not on the Secretary to make a showing of nondisability.

In the present case, after reviewing the medical exhibits, the hearing testimony, and plaintiff's subjective complaints, the ALJ concluded:

The claimant has failed to establish that during the period of time from December 1, 1973 through September 30, 1974 he had any medical condition or combination of conditions that satisfactorily prevented him from engaging in all forms of sedentary work activity. The claimant's principal medically determinable impairment during such period of time consisted of scoliosis. However, the evidence fails to show that this condition resulted in any significant limitation of range of motion or neurological deficits.

In evaluating plaintiff's claim, the ALJ proceeded under the Secretary's new regulations which became effective February 26, 1979, 20 C.F.R. §§ 404.1501-404.1539 (1979). The regulations specify a sequential evaluation of disability. 20 C.F.R. § 404.1503. When, as in this case, an ALJ concludes that the...