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BRADLEY v. BOWEN

July 14, 1987

Eartie Bradley, Plaintiff,
v.
Otis R. Bowen, M.D., Secretary of Health and Human Services, Defendant


Fisher, Chief Judge.


The opinion of the court was delivered by: FISHER

This is an action brought pursuant to Section 205(g) of the Social Security Act (the Act), as amended, 42 U.S.C. § 405(g), to review a final determination of the Secretary of Health and Human Services which denied plaintiff's application for a period of disability, disability insurance benefits, and Supplemental Security Income (SSI) benefits. The Secretary's decision is supported by substantial evidence; therefore, the decision below is affirmed.

 Disability is defined both for purposes of disability insurance and SSI benefits 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) and 1382c(a)(3)(A), Baeder v. Heckler, 768 F.2d 547, 551 (3d Cir. 1985). The applicable standards for disability evaluation under Section 423 are enumerated in 20 C.F.R. § 404.1520. *fn1" These standards involve the weighing of four factors: (1) objective medical evidence; (2) diagnoses or medical opinions based on such medical facts; (3) the claimant's subjective testimony of pain and disability; and (4) the claimant's education, age and work experience. Lizzio v. Secretary of Health, Education and Welfare, 592 F. Supp. 683, 685 (D.N.J. 1982); Torres v. Harris, 502 F. Supp. 518, 521 (E.D. Pa. 1980).

 The application of these standards of disability evaluation involves the shifting of burdens of proof. Olsen v. Schweiker, 703 F.2d 751, 753 (3d Cir. 1983). The Supreme Court recently clarified these burdens of proof in Otis R. Bowen, Secretary of Health and Human Services v. Janet I. Yuckert, 482 U.S. 137, 55 U.S.L.W. 4735, 96 L. Ed. 2d 119, 107 S. Ct. 2287 (1987). "The claimant first must bear the burden at step one of showing that he is not working, at step two that he has a medically severe impairment or combination of impairments . . ." which fall within the meaning of the Statute. "If the process ends at step two, the burden of proof never shifts to the Secretary" and the claimant does not receive benefits. If claimant carries these burdens or the impairment is conclusively presumed to be disabling, claimant's burden of proof is met. If, however, claimant's impairment is not "conclusively" severe, under the criteria set forth in the Revised Listing of Impairments, 20 C.F.R. Appendix 1, Subpart P, Regulation No. 4, step three is unsatisfied, and the claimant must prove "at step four that the impairment prevents him from performing his past work." The "Secretary bears the burden of proof at step five, [to determine] whether the claimant is able to perform work available in the national economy." The Supreme Court states further that "this allocation of burden of proof is well within the Secretary's exceptionally broad authority under the Statute." Id. at 4757, n.5.

 This court, empowered by 42 U.S.C. § 405(g), may review the final determination of the Secretary and enter judgment upon the pleadings and transcript of the record. It is beyond the narrow scope of this court's reviewing power, however, to reweigh the evidence upon which such a determination was based. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). In reviewing findings of disability, any findings of fact of the Secretary must be accepted as conclusive by the reviewing court if supported by substantial evidence. Lewis v. Califano, 616 F.2d 73, 76 (3d Cir. 1980).

 The Supreme Court has defined "substantial evidence" as "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, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971) (quoting Consolidated Edison v. N.L.R.B., 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938)). Inferences and conclusions which are drawn from the basic facts are also afforded the conclusive effect of the substantial-evidence rule. Franklin v. Heckler, 598 F. Supp. 784, 789 (D.N.J. 1984); see also Jolley v. Weinberger, 537 F.2d 1179, 1181 (4th Cir. 1976). "Even if the Secretary's factual findings are supported by substantial evidence," however, "[a] court may review whether the administrative determination was made upon correct legal standards." Friedberg v. Schweiker, 721 F.2d 445, 447 (3d Cir. 1983) (quoting Curtin v. Harris, 508 F. Supp. 791, 793 (D.N.J. 1981)).

 Plaintiff contends that she is entitled to benefits based on disability due to weak knees (Tr. 48). At the time of the administrative hearing, plaintiff was 42 years old and had an eleventh-grade education (Tr. 25).

 Plaintiff testified that she began work in 1977 as a nurse's aide (Tr. 25-26). As such, she was responsible for the care of patients and was often required to lift and bend. She was not, however, responsible for lifting patients out of bed without the assistance of others (Tr. 41). Plaintiff states that she left this job after only a few months due to health problems and did not work again until 1979, when she became employed as a custodian (Tr. 26). During her four years as a custodian, plaintiff lifted garbage and used a buffing machine, which she now alleges caused her to suffer pain and shortness of breath, resulting from the inhalation of dust and garbage (Tr. 39-40). On February 28, 1983, plaintiff ceased work as a custodian, and she states that she has not been employed since that time (Tr. 27). Plaintiff later stated, however, that she had also been employed at one time as a house cleaner (Tr. 41). The record is devoid, however, of any additional information regarding this employment, and plaintiff was unable to recall any details or dates of employment (Tr. 42). Plaintiff's original claim for benefits indicates that she took care of her own household duties and chores (Tr. 65). Plaintiff later contradicted herself when she testified during the administrative hearing that she was unable to clean her apartment, cook her meals or shop for food (Tr. 36-37). Plaintiff also stated that she neither had any hobbies nor attended church, and that she left home only to go to the doctor (Tr. 46). Again, plaintiff's original claim for benefits is at odds with her later testimony, where plaintiff had previously reported that she had usual social contacts (Tr. 65).

 In support of her allegations of disability, plaintiff testified that her right kneecap was damaged, causing her right leg to give out while walking (Tr. 31). She also stated that this difficulty with her leg began two (2) years prior (id.) and is currently accompanied by pain on a daily basis (Tr. 35). Plaintiff further testified that both ankles were constantly swollen and that she suffered from a heart murmur which caused her to experience shortness of breath (Tr. 31, 34). In addition, plaintiff alleges headaches and dizziness on a weekly basis, which admittedly were relieved by medication (Tr. 35, 42). Finally, plaintiff stated that although she believed her pain medication was not strong enough (Tr. 42-43), it did enable her to sleep (Tr. 37).

 The administrative law judge considered a variety of medical reports submitted in support of plaintiff's allegations.

 Dr. I. Ahmad, who examined the plaintiff in connection with a worker's compensation claim on October 20, 1977, found tenderness in the back and neck area. Cervical and lumbar movements were restricted between 10 and 20 degrees, and increased pain was noted during the straight leg raising test. A 20 percent orthopedic disability was estimated (Tr. 113).

 Dr. Malcolm H. Hermele, who examined the plaintiff on April 7, 1980, at the request of her attorney, noted that she smoked two to three packs of cigarettes a week. Physical examination revealed an "obese female in no acute distress" standing 5'6" tall and weighing 230 pounds. Her blood pressure was recorded as 140/80, and her lungs were clear and heart sounds normal. No clubbing cyanosis or edema was noted in the extremities. Chest X-rays evidenced increased broncho-vascular markings in the bilateral lower lung fields. Pulmonary function studies showed a normal vital capacity (VC) and forced one-second expiratory volume (FEV[1]) of 2.1 liters. Dr. Hermele opined that the plaintiff suffered from chronic bronchitis, for which he estimated a permanent disability of 20% of total. In addition, based upon a history of hypertension, he estimated a permanent disability of 15% of total (Tr. 111).

 Audiological testing performed on April 9, 1980, in connection with the plaintiff's worker's compensation claim revealed a bilateral 30% loss of hearing. Dr. Atif Z. Ghander estimated a permanent disability of 30% for each ear, as well as a 7-1/2% permanent partial total (sic) disability due to subjective symptoms of tinnitus. Dr. Ghander also estimated a 7-1/2% permanent partial total disability ...


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