Losco v. Heckler, 84 Civ. 3971 (RJW).

• Decision Date: 12 March 1985
• Docket Number: No. 84 Civ. 3971 (RJW).,84 Civ. 3971 (RJW).
• Parties: Savino LOSCO, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Southern District of New York

604 F. Supp. 1014

Savino LOSCO, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.

No. 84 Civ. 3971 (RJW).

United States District Court, S.D. New York.

March 12, 1985.

Tomkiel & Tomkiel, P.C., Yonkers, N.Y., for plaintiff; Stanley A. Tomkiel, III, Yonkers, N.Y., of counsel.

Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for defendant; Donna H. Lieberman, New York City, of counsel.

OPINION

ROBERT J. WARD, District Judge.

This is an action brought pursuant to section 205(g) of the Social Security Act as amended (the "Act"), 42 U.S.C. § 405(g), to review a final determination of the Secretary of Health and Human Services (the "Secretary"). That decision denied plaintiff's application for federal disability insurance benefits. Plaintiff moves for summary judgment pursuant to Rule 56, Fed.R. Civ.P.¹ The Secretary cross-moves for judgment on the pleadings, pursuant to Rule 12(c), Fed.R.Civ.P. For the reasons hereinafter stated, plaintiff's motion is granted insofar as it seeks a remand to the Secretary. The Secretary's cross-motion is denied.

BACKGROUND

Plaintiff is currently fifty-eight (58) years old. He has completed formal education through only the ninth grade. According to the administrative record, plaintiff has not worked since January 1981. (Tr. 23). He was last employed as a driverchauffeur. Prior to that time he worked as a machine operator and thereafter as an insurance agent.

Plaintiff first applied for disability insurance benefits in July 1981, alleging that he had been disabled since January 1981 as a result of a severe back impairment. That application was denied on September 14, 1981, and plaintiff did not appeal that denial within the prescribed period.² Subsequently, on October 22, 1982, plaintiff filed a second application for disability insurance benefits, alleging that he had been disabled since January 1981 as a result of a severe back impairment. After plaintiff's application was denied initially and on reconsideration, he filed a timely request for an administrative hearing. Such a hearing was held on September 13, 1983, before Administrative Law Judge Ralph A. Celentano (the "ALJ"). Plaintiff appeared pro se at this hearing. In a decision dated January 13, 1984, the ALJ determined that plaintiff was not "disabled" within the meaning of the Act because plaintiff had retained the residual functional capacity for sedentary work, and therefore, that plaintiff was not entitled to disability insurance benefits. This determination became the final decision of the Secretary when it was adopted by the Appeals Council on April 5, 1984.

DISCUSSION

I.

The legal principles that govern the Court's decision on the instant motions are well settled. "Disability" is defined in the Act as the "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." 42 U.S.C. § 423(d)(1)(A). The mere presence of an impairment is not disabling within the meaning of the Act. Rather, a person may be determined to be under a disability only if his or her impairment is of such severity that the claimant is not only unable to do his or her previous work, but cannot engage in any kind of substantial gainful work that exists in the national economy. 42 U.S.C. § 423(d)(2)(A).

The initial burden of proving disability is on the claimant. 42 U.S.C. § 423(d)(5), 20 C.F.R. § 404.1520; see Bluvband v. Heckler, 730 F.2d 886, 891 (2d Cir.1984); Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir.1984); Rivera v. Schweiker, 717 F.2d 719, 722 (2d Cir.1983); Schauer v. Schweiker, 675 F.2d 55 (2d Cir.1982); Carter v. Schweiker, 649 F.2d 937, 940 (2d Cir.1981); Gold v. Secretary of HEW, 463 F.2d 38, 41 (2d Cir.1972). The claimant satisfies this burden by making out a prima facie case, that is, by showing that his or her impairment prevents return to his or her prior employment, Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980); Bastien v. Califano, 572 F.2d 908, 912-13 (2d Cir.1978). The burden then shifts to the Secretary, who must produce evidence to show the existence of alternative substantial gainful work that exists in the national economy that the claimant could perform. Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 1954, 76 L.Ed.2d 66 (1983); Bluvband v. Heckler, supra, 730 F.2d at 891; Ferraris v. Heckler, supra, 728 F.2d at 584; Rivera v. Schweiker, supra, 717 F.2d at 722-23; Parker v. Harris, supra, 626 F.2d at 231; Bastien v. Califano, supra, 572 F.2d at 912-13.

In reaching a conclusion as to disability, both objective and subjective factors are to be considered. These include objective medical facts, diagnoses or medical opinions based on such facts, subjective evidence of pain or disability testified to by the claimant or other witnesses, and the claimant's educational background, age, and work experience. Ferraris v. Heckler, supra, 728 F.2d at 585; Carroll v. Secretary of HHS, 705 F.2d 638, 642 (2d Cir. 1983); Rivera v. Harris, 623 F.2d 212, 216 (2d Cir.1980); Bastien v. Califano, supra, 572 F.2d at 912; Gold v. Secretary of HEW, supra, 463 F.2d at 41 n. 2. These factors need not be given equal weight. The expert opinion of the claimant's treating physician is entitled to particular weight, and "in the absence of substantial contradictory evidence, the opinion of the claimant's treating physician is binding on the Secretary." Hankerson v. Harris, 636 F.2d 893, 896 (2d Cir.1980); see Ferraris v. Heckler, supra, 728 F.2d at 585; Donato v. Secretary of HHS, 721 F.2d 414, 419 (2d Cir.1983); Rivera v. Schweiker, supra, 717 F.2d at 723; Carroll v. Secretary of HHS, supra, 705 F.2d at 642; Aubeuf v. Schweiker, 649 F.2d 107, 112 (2d Cir.1981); Eiden v. Secretary of HEW, 616 F.2d 63, 64 (2d Cir.1980); Alvarado v. Califano, 605 F.2d 34, 35 (2d Cir.1979); Bastien v. Califano, supra, 572 F.2d at 912. Moreover, in making any determination as to a claimant's disability, the Secretary must explain what physical functions the claimant is capable of performing. See Ferraris v. Heckler, supra, 728 F.2d at 585; Kerner v. Flemming, 283 F.2d 916, 921 (2d Cir. 1960); Deutsch v. Harris, 511 F.Supp. 244, 249 (S.D.N.Y.1981).

The Secretary has the duty of making the determination of disability under the principles set out above. It is not the function of this Court, which sits in the present context as a reviewing court, to determine de novo whether the claimant is disabled. Assuming the Secretary has applied proper legal principles, judicial review is limited to an assessment of whether the findings of fact are supported by substantial evidence. If they are so supported, they are conclusive. 42 U.S.C. § 405(g). See Bluvband v. Heckler, supra, 730 F.2d at 891; Aponte v. Secretary of HHS, 728 F.2d 588, 591 (2d Cir.1984); Donato v. Secretary of HHS, supra, 721 F.2d at 418; Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982) (per curiam). Thus, absent legal error by the Secretary, her decision cannot be set aside if it is supported by substantial evidence. Bluvband v. Heckler, supra, 730 F.2d at 891; Dumas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir.1983); Aubeuf v. Schweiker, supra, 649 F.2d at 112; Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.1979). "Substantial evidence" means "more than a mere scintilla. It means such relevant 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, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). See also De Leon v. Secretary of HHS, 734 F.2d 930, 933 (2d Cir.1984); Donato v. Secretary of HHS, supra, 721 F.2d 418; Parker v. Harris, supra, 626 F.2d at 231-32.

II.

Applying these principles to the instant case, the Court concludes that the decision of the Secretary denying plaintiff's application for disability insurance benefits is not supported by substantial evidence, and that the case must be remanded. In particular, the Secretary failed properly to evaluate the credibility and legal effect of the medical reports and plaintiff's testimony that extreme pain rendered plaintiff disabled within the meaning of the Act. In addition, the Secretary also failed to satisfy her statutory duty to consider the effect on plaintiff's functional capacity of all of plaintiff's impairments—both individually and in combination. Moreover, the record reveals that the ALJ failed to provide plaintiff with an adequate hearing, or to perform his duty affirmatively to develop the record.

A.

In his decision dated January 13, 1984, the ALJ briefly summarized the medical evidence relevant to plaintiff's claims of disability due to back pain. The ALJ then concluded:

The medical evidence establishes that the claimant has severe disc disease, but that he does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4.

(Tr. 10).

In so concluding, however, neither the ALJ nor the Secretary evaluated the credibility of plaintiff's claims that extreme pain rendered plaintiff unable to engage in substantial gainful activity and, thus, disabled within the meaning of the Act. However, it is well settled both in the Second Circuit and in others, that "subjective pain may serve as the basis for establishing disability, even if such pain is unaccompanied by positive clinical findings or other `objective' medical evidence." Marcus v. Califano, supra, 615 F.2d at 27 (emphasis in original). See also Aubeuf v. Schweicker, 649 F.2d 107, 112 (2d Cir.1981); Northcutt v. Califano, 581 F.2d 164, 166-67 (8th Cir. 1978); Cutler v. Weinberger, 516 F.2d 1282, 1286-87 (2d Cir.1975); Stark v. Weinberger, 497 F.2d 1092, 1097 (7th Cir.1974); Sayers v. Gardner, ...