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FRANKLIN v. HECKLER

December 4, 1984

Mary FRANKLIN, Plaintiff,
v.
Margaret M. HECKLER, Secretary of Health and Human Services, Defendant



The opinion of the court was delivered by: LACEY

 Plaintiff Mary Franklin filed an application for disability insurance benefits on November 28, 1980, and for Supplemental Security Income (SSI) on November 30, 1984. Plaintiff claimed a disability as of July 1976 due to "arthritis, orthopedic, hypertension, cardiovascular, neurological, neuropsychiatric, opthalmological [ sic ]." The application was denied initially and on reconsideration. A hearing was held on November 15, 1981. The ALJ, in a decision dated November 19, 1982, found that plaintiff's insured status had expired on June 30, 1980, and that prior to January 1982 plaintiff had not suffered any impairment or impairments which significantly limited her ability to perform basic work-related functions. In addition, the ALJ found that after January 1982 the severity of plaintiff's impairments equalled the requirements of section 10.10 A, Subpart P, Appendix 1, Regulations No. 4, and that such impairments would preclude her from working for at least twelve months. Thus, plaintiff was found to be entitled to SSI benefits after January 1982, but was denied SSI benefits for any prior time period.

 Disability insurance benefits were denied entirely because of the ALJ's finding that the disability period did not commence until after plaintiff's insured status had expired. The Appeals Council confirmed the ALJ's decision of the Secretary. Plaintiff now seeks review of the Secretary's decision under Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). Specifically, plaintiff disputes the ALJ's decision with respect to the date of onset of the disability.

 Disability is defined identically for the purposes of disability insurance and SSI benefits as inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairments 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); § 1382c(a)(3)(A). If the applicant is presently engaged in substantial activity, or does not have an impairment severe enough to limit significantly his or her ability to perform basic work activities, a finding of nondisability is justified. See 20 C.F.R. 404.1520; 404.1526.

 MEDICAL EVIDENCE

 The earliest medical evidence of record consists of a battery of five reports resulting from medical examinations conducted between August 9, 1979, and September 4, 1979.

 Dr. Pollock, a psychiatrist examined plaintiff on August 9, 1979. He found hyperactive deep tendon reflexes, tremors of the eyelids, tongue and fingers, depression of corneal and pharyngeal reflexes, and a moderately positive Romberg test. He diagnosed "neurological residuals of exposure to noxious fumes, dust and loud noise and traumatic anxiety psychoneurosis, also sciatic neuritis. . . ." Dr. Pollock also noted that plaintiff was 61 inches tall, weighed 222 pounds, and had blood pressure of 130/80, and that she "appeared nervous and worried." He estimated a 100 percent disability.

 Dr. Ahmad, an orthopedist, examined plaintiff on August 14, 1979. He diagnosed plaintiff as suffering from cervical and lumbosacral sprain, and varicose veins. He found that flexion of both the cervical spine and the knees was restricted by five degrees. There were spasms in the paravertebral region of the cervical spine, the trapezius muscles, and the buttock areas. Movements of the low back were restricted in flexion by twenty degrees; extension and lateral bending was restricted by ten degrees. There was difficulty in squatting and while standing on the toes and on the heels. There was tenderness in both knees as well as in the lumbosacral region. Varicose veins were also present. He estimated a 100 percent disability.

 Dr. Friedman examined the plaintiff on August 29, 1979. He diagnosed plaintiff as having chronic bronchitis and hypertensive cardiovascular disease. His examination of plaintiff revealed the beginning of arcus senilis in the eyes, and Grade I hypertensive changes in the eyes. In addition, he found accentuation of the aortic components of the second heart and cardiac enlargement. Testing of the pulmonary function revealed a vital capacity of 1.4 liters which is 43% of predicated normal. He found evidence for restricted pulmonary disease and exogenous obesity. He noted that plaintiff was 64 inches tall, weighed 225 pounds, and found the blood pressure to be 160-94. Dr. Friedman also noted that plaintiff had no varicose veins or osteoarthritis, and found the chest and lungs to be clear. He estimated a 25% disability.

 Dr. Klein, an ophthalmologist, examined plaintiff on September 4, 1979, and diagnosed her as having chronic conjunctivitis of both eyes. This diagnosis was apparently based on a finding that both conjunctivas were "infected with dilated blood vessels." He found a 10% permanent partial total disability.

 Dr. Ghander also examined plaintiff on September 4, 1979. His report revealed a bilateral hearing impairment, rhinosinuvitis, nasopharyngitis and tinnitus. He estimated a permanent disability of 35% for both ears.

 At the request of defendant, plaintiff was also examined by Dr. Amato in early 1981 -- the report is dated February 4, 1981. Examination revealed that the plaintiff had an elevated blood pressure of 164-102. However, pulse was regular and an electrocardiogram revealed normal sinus rhythm. The axis was neutral and one junctional premature beat was noted. The P wave in VI was suggestive of left atrial enlargement. The chest x-ray revealed a cardiac silhouette with a moderate degree of cardiomegaly. Examination of the musculature and musculoskeletal system revealed no joint deformity. Neurological examination revealed no motor or sensory deficits, and examination of the extremities revealed no peripheral edema, clubbing or cyanosis. Plaintiff's weight was listed as 249 1/2 pounds and her height as 63 1/2 inches. Dr. Amato concluded that the "arthritis mentioned by the patient is apparently due to degenerative arthritis associated with exogenous obesity," but that plaintiff should, nonetheless, "not be considered unable to work."

 Hospital records show that plaintiff was admitted to the Hospital Center at Orange in January 1982 due to severe cervical radiculopathy. Morbid obesity, cholelesthiasis, hypertensive cardiovascular disease and uterine myoma were also diagnosed. On admission plaintiff weighed 255 pounds and her blood pressure was 124/80. EMG and nerve conduction studies showed bilateral C6 radiculopathy. X-rays of the cervical spine showed significant degenerative changes at C4 and C5-6 levels. X-rays of the lumbosacral spine showed narrowing of these disc spaces. Plaintiff complained of numbness in the hands and fingers in addition to radiating pain. Plaintiff was treated with cervical traction and muscle relaxants.

 The only other medical evidence included in the record is a brief handwritten note from Dr. Edmondson, plaintiff's treating physician, addressed to a Dr. Nichols, and dated August 8, 1980. Dr. Edmondson noted that plaintiff had "mild hypertension under good control." The rest of the note is illegible and the record fails to provide clarification.

 PLAINTIFF'S TESTIMONY

 Plaintiff was born in 1934, and the highest grade completed by her was eleventh grade. She testified to being 63 1/2 inches tall.

 Plaintiff worked as a shirt presser for approximately twenty-three years until she quit her job in July 1976; she claims that she became unable to work at that time. She has not been employed in any other capacity since then. She stated that her job required constant standing, but that no lifting was involved.

 According to plaintiff's testimony, she first complained of pains in her legs, arms and shoulders to Dr. Edmondson in 1974. She stated that he prescribed aspirin and high blood pressure medication at that time, and that in 1976 he began treating her arthritis with prescription medication. At the time of the hearing she claimed to be taking the following medications: Aldomet, Tenuate Dospan, Quinamor, Zyloprin, Motrin, Lasix, Bellengal, and Hygroton. Plaintiff claimed that she could not sit for more than the length of the bus ride from East Orange to Newark without her joints stiffening. She also stated that she could not walk enough to get the significant exercise called for by her Weight Watcher's program.

 In addition to the arthritis, plaintiff testified that she had intermittent problems with gout, a pinched nerve (she was wearing a special collar at the hearing), uterine fibroid tumors, and high blood pressure. In terms of subjective symptoms, she stated that she had numbness and swelling of the extremities, dizziness and blurring vision, "sweats and nervousness."

 Plaintiff had never been hospitalized prior to 1982 except for "female problems." She also stated that she was injured in a bus accident in 1979 which resulted in her having to wear a cast on her left knee for six weeks.

 Plaintiff testifies that she stays home most of the time. She stated that she is able to care for her personal hygiene, but that her sixteen-year-old son, who lives with her, does most of the housework, and that her sister helps her out with the shopping.

 THE ALJ'S DECISION

 The ALJ found that the plaintiff had not suffered from a severe impairment before June 1980. Prior to this date he found a paucity of evidence that plaintiff's alleged impairments would significantly restrict basic work-related functions. He noted specifically with respect to each of the five medical examinations conducted in August/September 1979 that the various diagnoses suggesting partial or total disability were, at best, thinly supported by objective medical findings. He also noted that these examinations were performed in connection with a workers' compensation case, and that under the authority of Minitee v. Harris, 510 F. Supp. 1216 (D.N.J.1981), such reports, though admissible, are not entitled to much weight because they are not geared to the statutory tests of disability defined by Section 223(d)(1) of the Social Security Act. The absence of corresponding and possibly conflicting reports obtained by the employer's insurance carriers was also noted.

 With respect to plaintiff's subjective complaints of pain prior to the date of expiration of insurance eligibility, the ALJ noted the lack of corroborative evidence in support of plaintiff's claims: plaintiff "takes no strong pain killing medication, attended no regular treatment sessions for pain, and shown [ sic ] no significant restriction in daily activities, loss of weight or extreme changes in personality. . . ." The ALJ acknowledged the potentially disabling character of severe pain, and accepted plaintiff's contention that she experienced some pain, but nonetheless concluded that there was insufficient evidence of pain severe enough to, either by itself or in combination with other impairments, preclude plaintiff from performing substantial gainful activity.

 Although the ALJ did not explicitly consider Dr. Amato's report in connection with either the period prior to June 1980 or the period between then and January 1982 when plaintiff was hospitalized, he did consider that report in conjunction with the report of the hospital in reaching his conclusion that plaintiff was disabled as of January 1982. He found that the combination of plaintiff's increased weight, the x-ray findings of cervical radiculopathy, and plaintiff's complaints of pain met the criteria set forth in Section 10.10 A, Appendix 1, Regulations No. 4 of Subpart P. The ALJ's decision concluded with the following findings:

 THE ALJ'S FINDINGS

 1. The claimant met the special earnings requirements of the Act on July 1976, the date that the claimant stated she became unable to work, and continued to meet them through June 30, 1980.

 2. The claimant has not engaged in substantial gainful activity since July 1976.

 3. The claimant has the following impairments: cervical radiculopathy, moderate hypertension, cholelithiasis and morbid obesity.

 4. After January 1982 the claimant's complaints of pain are credible in the light of the evidence of record.

 5. Prior to January 1982 the claimant did not have any impairment or impairments which significantly limited the ability to perform basic work-related functions; therefore, the claimant did not have a severe impairment prior to January 1982.

 6. After January 1982 the severity of the claimant's impairments equals the requirements of Section 10.10 A, Subpart P, Appendix 1, Regulations No. 4, and has precluded her from working for at least 12 months.

 7. The claimant was not under a disability as defined in the Social Security Act, on or before the claimant's date last insured June 30, 1980.

 STANDARD OF REVIEW

 In reviewing the Secretary's decision, this court must determine whether there is substantial evidence in the record as a whole to support the Secretary's findings. 42 U.S.C. § 405(g) (Supp. V 1981); Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir.1979). That standard is deferential, but not meaningless; the court "retains a responsibility to scrutinize the entire record and to reverse or remand if the Secretary's decision is not supported by substantial evidence." Smith v. Califano, 637 F.2d 968, 970 (3d Cir.1981). Accord, Baerga v. Richardson, 500 F.2d 309, 313 (3d Cir.1974), cert. denied, 420 U.S. 931, 95 S. Ct. 1133, 43 L. Ed. 2d 403 (1975).

 Substantial evidence is "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). Accord, Stewart v. Secretary of HEW, 714 F.2d 287, 290 (3d Cir.1983). Substantial evidence may fall short of a preponderance, and the possibility of drawing two inconsistent conclusions from the record does not preclude a finding of substantial evidence in support of one. Consolo v. Federal Maritime Comm., 383 U.S. 607, 620, 86 S. Ct. 1018, 1026, 16 L. Ed. 2d 131 (1966); Port Norris v. I.C.C., 697 F.2d 497, 502 (3d Cir.1982). But the evidence "must do more than create a suspicion of the existence of the fact to be established. . . . It must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." Consolo, supra, 383 U.S. at 620, 86 S. Ct. at 1026, quoting Labor Board v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S. Ct. 501, 505, 83 L. Ed. 660 (1939). The substantial evidence standard applies not only to administrative determinations of basic facts, but to inferences drawn therefrom. Reading v. Mathews, 542 F.2d 993, 997 (7th Cir.1976); Jolley v. Weinberger, 537 F.2d 1179, 1181 (4th Cir.1976); Reyes v. Harris, 155 U.S. App. D.C. 154, 476 F.2d 910, 914 (D.C.Cir.1973); Beane v. Richardson, 457 F.2d 758, 759 (9th Cir.1972), cert. denied, 409 U.S. 859, 93 S. Ct. 144, 34 L. Ed. 2d 105 (1973).

 I must also review the ALJ's decision for errors of law. Nettles v. Schweiker, 714 F.2d 833, 836 (8th Cir.1983); Dellolio v. Heckler, 705 F.2d 123, 125 (5th Cir.1983); Doran v. Schweiker, 681 F.2d 605, 609 (9th Cir.1982); Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir.1982); Aubeuf v. Schweiker, 649 F.2d 107, 112 (2d Cir.1981). *fn1" The legal findings of the ALJ are not entitled to the deference given findings of fact. Allison v. Heckler, 711 F.2d 145, 147 n. 5 (10th Cir.1983); Wiggins, supra, 679 F.2d at 1389 & n. 3. Evidence cannot be "substantial," or even relevant, except in light of the correct legal standard.

 DISCUSSION

 The ALJ found that plaintiff did not suffer from a severe impairment prior to the expiration of her insured status in June 1980. The only evidence of record pertaining to this period are the reports of Doctors Pollock, Ahmad, Friedman, Klein and Ghander. The ALJ noted that the diagnoses of these five physicians, which suggested partial or total disability, were, at best, thinly supported by objective medical findings.

 Beyond this, the court takes notice that each of these physicians frequently prepares consultative reports in support of claims for Social Security benefits. Furthermore, plaintiff's representative, the law firm of Freeman and Bass, invariably submits these physicians' reports to support their clients' claims. After a review over several years of reports from each of these physicians, it must be said that the reports before me are of questionable weight. With few exceptions over the years, these physicians' findings and conclusions have been remarkably similar in report after report, while dealing with males and females of widely disparate backgrounds. They certainly do not reflect a highly individualized examination of the kind required in matters such as this. What happens frequently is that the Freeman and Bass firm retains these physicians to examine clients as petitioners in workers' compensation proceedings and then uses their reports twice, first in the compensation matter and then -- using the same report -- in the disability matter. This is why their reports so often reflect workers' compensation terminology, a fact which was commented upon in Minitee v. Harris, 510 F. Supp. 1216 (D.N.J.1981). Examples of such reports are made a part of this opinion. See Appendix.

 These physicians' reports in these cases fit their unvarying pattern and were quite properly accorded very little weight. *fn2" It is noted these physicians are not claimed to be treating physicians.

 The only other reports of record pertaining to the period prior to January 1982, the date which the ALJ determined that the plaintiff became disabled, are the reports of Dr. Edmondson, dated August 8, 1980, and Dr. Amato, dated February 4, 1981. Dr. Edmondson found "mild hypertension under good control" and Dr. Amato specifically concluded that "[plaintiff] should not be considered unable to work." It should be noted that, although the ALJ did not explicitly consider Dr. Amato's report in and of itself, he did consider it in conjunction with the report of plaintiff's January 1982 hospitalization. It is apparent, therefore, that there is no substantial evidence of record which would indicate that plaintiff was disabled until the reports of her hospitalization in January 1982. Only at that time did the ALJ find that the combination of plaintiff's increased weight, cervical radiculopathy, and corroborated complaints of pain, were severe enough to meet the criteria of listed impairments as set forth in Section 10.10 A, Appendix 1, Regulations No. 4 of Subpart P.

 With respect to plaintiff's subjective complaints of pain prior to the date of expiration of insurance eligibility, the ALJ noted the lack of corroborative evidence in support of plaintiff's claims. He stated that plaintiff "takes no strong pain killing medication, attended no regular treatment sessions for pain, and shown [ sic ] no significant restriction in daily activities, loss of weight or extreme changes in personality. . . ." The ALJ acknowledged the potentially disabling character of severe pain, and accepted plaintiff's contention that she experienced some pain, but nonetheless concluded that there was insufficient evidence of severe pain which, either by itself or in combination with other impairments, precluded her from performing substantial gainful activity. The ALJ's conclusion was clearly proper.

 CONCLUSION

 The ALJ's determination that disability had not been shown to have begun on or before January 1982 is supported by substantial evidence. The ALJ was justified in giving greater weight to the Amato report and the Edmondson findings and according little weight to the Pollock-Ahmad-Friedman-Klein and Ghander reports. *fn3"

 ORDER

 For the reasons stated in the opinion of this date,

 IT IS on this 4th day of December 1984,

 ORDERED that the final decision of the Secretary of Health and Human Services in the above captioned matter shall be, and hereby is affirmed.

 APPENDIX

 The first report in the appendix under each doctor's name is from the transcript of the present case. An inspection of the additional four reports shows that they are strikingly identical, not only to each other, but to the reports of the present case as well. Particular note should be taken of the fact that, even though these five physicians have related varying personal histories and differing impairments for each of the individuals they examined, their findings and ultimate conclusions are, nonetheless, the same for each. It should further be noted that other reports, not made part of this appendix, were also gathered and were found to be identical as well. Furthermore, some of these plaintiffs did not even assert certain of the conditions which these doctors reported as the reason for their disabilities. Thus, these five reports, viewed together, clearly are sufficient to illustrate the point that these doctors' reports may properly be afforded little, if any, weight.

 APPENDIX A

 Dr. Samuel Pollock

 SAMUEL L. POLLOCK, M.D.

 PROFESSIONAL ASSOCIATES

 50 PARK PLACE

 SUITE 1530

 NEWARK N.J. 07102

 (201) 642-1115

 313 STATE STREET

 SUITE 301

 PERTH AMSOY, N.J. 08861

 (201) 826-2575

 REPORT OF NEUROPSYCHIATRIC EXAMINATION

 September 22, 1983

 Freeman and Bass, Esqs.

 24 Commerce Street, Suite 726

 Newark, New Jersey 07102

 Your File No. 35428-C

 EDDIE FELDER, 576 Walnut Street, Elizabeth, New Jersey, age 57, divorced; employed by Elizabeth Lumber Company, as a truck driver.

 HISTORY : He was employed by Elizabeth Lumber Company. Prior to that he worked for the National Tool for a period of 3 years, until 1975, as a laborer. He also worked for Allied Industrial for 19 years, until 1972, as a maintenance worker.

 He was employed by Elizabeth Lumber Company for 3 years, until 11/80. He was exposed to dust, fumes, gases, chemicals, noise, temperature changes and wetness. He was required to do bending, lifting, standing, sitting and manipulations of his hands and feet.

 CHIEF COMPLAINTS : Coughs, with phlegm; chest pains, shortness of breath, irritation of nose and throat. Difficulty hearing; has to turn radio and TV up louder and ask people to talk louder. Blurred vision. Lights bother his eyes; eyes tear and run. Pains in neck, shoulders back, arms, legs, hands and feet on bending, lifting, changes of weather; stiffness, soreness and weakness. He feels nervous and irritable. Headaches, dizziness. He is worried about his conditions and about the future and his inability to work.

 PAST HISTORY : Suffers with arthritis, high blood pressure and stomach ailment. Hospitalized in Alexian Brothers emergency 1980 for knife wound to neck.

 EXAM, MENTAL AND NEUROLOGICAL : He appeared nervous and worried. Ht. 71". Wt. 175 lbs. Blood pressure 120/80. Head shows no scars. Eyes show normal pupillary reaction, no nystagmus, normal fundi. Gait normal. Corneal and pharyngeal reflexes depressed. Deep tendon reflexes all hyperactive. Tremors of eyelids, tongue and fingers noted. Romberg test shows moderate swaying. Cranial nerves intact. Sensory and motor systems normal. Coordination intact.

 DIAGNOSIS AND OPINION : Neurological residuals of exposure to noxious fumes and dust and loud noise, also sciatic neuritis, and traumatic anxiety psychoneurosis, attributable to exposure at work.

 As a physiological industrial unit, he appears to be 100% disabled.

 FEE FOR EXAM AND REPORT $100.00

 SAMUEL L. POLLOCK, M.D.

 Life Fellow of the American Psychiatric Association

 SAMUEL L. POLLOCK, M.D.

 PROFESSIONAL ASSOCIATES

 10 COMMERCE COURT

 SUITE 717

 NEWARK, N.J. 07102

 (201) 642-1115

 313 STATE STREET

 SUITE 301

  PERTH AMSOY, N.J. 08861

  (201) 626-2575

  REPORT OF NEUROPSYCHIATRIC EXAMINATION

  August 9, 1979

  Freeman & Bass, Esqs.

  24 Commerce Street

  Newark, New Jersey 07102

  25983-C

  MARY FRANKLIN: 30 So. Munn Ave., East Orange N.J, age 44, separated, employed by Various Companies.

  HISTORY: She has worked in the cleaning industry as a presser and working around cleaning of garments from approximately 1953 until 1976. She worked for Schait and Son Cleaners from 1953 until 1965; she then worked for Golden Cleaners from 1966 until 1974. She last worked for the Twin Method cleaners from 1974 until 1976.

  In connection with her work; she has been exposed to dust, fumes, lifting and bending; loud noises. She also is required to stand on her feet all day and do manipulations with her hands. She also was exposed to temperature changes. She developed high blood pressure; enlargement of her heart; bronchitis; and had a bus accident in 1964 and received settlement of $ 800.00.

  CHIEF COMPLAINTS: Headaches, feels nervous, irritable, restless and sleepless, she is moody and depressed. Coughs with phlegm; irritation of nose and throat; difficulty hearing; chest pains; shortness of breath; eyes tear and blur. Pains in both legs and both arms; with radiation into lower back to both legs to toes; pains in neck, stiffness of neck, cannot bend, lift anything heavy, sit or stand long. Pain in change of weather.

  PAST HISTORY: Buss accident, 6/11/74; injury to left knee.

  EXAM MENTAL AND NEUROLOGICAL: She appeared nervous and worried. Ht. 61" Wt. 222 lbs. Blood Pressure; 130/80. Head shows no scars. Eyes show normal pupillary reaction, no nystagmus, normal fundi. Gait normal. Corneal and pharyngeal reflexes depressed. Deep tendon reflexes all hyperactive. tremors of eyelids, tongue and fingers noted. Romberg test shows moderate swaying. Cranial nerves intact. Sensory and motor systems normal. Coordination intact.

  DIAGNOSIS AND OPINION: Neurological residuals of exposure to noxious fumes, dust and loud noise and traumatic anxiety psychoneurosis, also sciatic neuritis, attributable to accident and exposure at work.

  As a physiological industrial unit, regardless of cause, this petitioner appears to be 100% disabled.

  FEE FOR EXAM & REPORT $50.00

  SAMUEL L. POLLOCK, M.D.

  EXHIBIT B-16

   SAMUEL L. ...


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