and ankle arthralgia (Tr. 98). Dr. Kass notes that the plaintiff was seen back on December 11, 1984, complaining of the same pain (id.), although no objective medical evidence pertaining to this visit is a part of the record.
From October 1984 to January 1985 plaintiff was under the care of Dr. Charles Kurtzer, a podiatrist. The doctor's report notes edema of the ankles accompanied by pain to palpitation and on forced inversion. The range of motion of the right ankle was reported as good, and an Unna Boot was applied on December 8, 1984 (Tr. 89, 92). Plaintiff was last seen by Dr. Kurtzer on January 17, 1985 (Tr. 89), after approximately three months of treatment.
Plaintiff now alleges that the Secretary improperly denied her claims for disability insurance benefits and SSI benefits where disability was established by reason of obesity in and of itself (Plaintiff's Memorandum of Law, p. 3). I find the record to the contrary.
Section 10.10 of the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1, requires that a woman 5'6" tall weigh a minimum of 274 pounds and suffer from at least one of the enumerated impairments in that section before a finding of disability will be made. A complete examination of the record reveals that the maximum weight attained by the plaintiff was only 240 pounds. Plaintiff admits falling some 34 pounds short of the specified value, yet contends that numerous characterizations of her weight as obesity substantiate her claim. (Plaintiff's Memorandum of Law, p. 4). Where the record offered no medical findings of equal or greater significance than those set forth in Section 10.10 of the Listing of Impairments, the Secretary was correct in concluding that disability could not be established on these grounds (Tr. 11, 12).
Plaintiff further contends that she is totally disabled by reason of psychiatric disability pursuant to Section 12.04 of the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1 (Plaintiff's Memorandum of Law, p. 6). As plaintiff never raised the issue of mental impairment at any stage of the administrative proceedings nor offered any evidence of treatment for such a condition, no final decision was rendered on this point, as required by 42 U.S.C. § 405(g), and this court therefore lacks jurisdiction to review plaintiff's allegations. 42 U.S.C. § 405(g).
Plaintiff also contends generally that the Secretary improperly addressed the medical evidence of record (Plaintiff's Memorandum of Law, p. 12). Specifically, plaintiff alleges that the Secretary failed to consider the deleterious effect of plaintiff's combined impairments; second, that he accorded too much evidentiary weight to plaintiff's having continued working for three additional years despite impairments discovered in connection with her worker's compensation claim; and, finally, that he improperly downplayed plaintiff's allegations of pain. After careful consideration, I disagree.
The Secretary carefully considered each of plaintiff's impairments, individually and in combination with each other, as reflected in his final determination (Tr. 11-12). Plaintiff's argument appears to be founded upon the belief that the Secretary failed to consider medical reports relating to plaintiff's worker's compensation claim (Plaintiff's Memorandum of Law, p. 10). This, however, was not the case.
It is well settled that the Secretary is charged with responsibility for choosing among conflicting medical opinions in determining whether an individual is disabled. 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, 1027-28 (3d Cir. 1986) Newhouse v. Heckler, 580 F. Supp. 1101, 1105 (E.D. Pa. 1984), rev'd on other grounds, 753 F.2d 283 (3d Cir. 1985). See also 20 C.F.R. § 404.1526. The Secretary may properly accept some parts of medical evidence and reject other parts, provided that he considers all the evidence and shows some basis for discounting the rejected evidence. Stewart v. Secretary of H.E.W., 714 F.2d 287, 290 (3d Cir. 1983); Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981); Winston v. Heckler, 585 F. Supp. 362, 367 (D.N.J. 1984).
The Secretary properly attributed little weight to audiological and ophthalmological test results submitted by Drs. Ghander and Klein, where examination of the record failed to reveal any allegations by plaintiff of either hearing or visual impairments. The Secretary also noted that disability reports submitted by the District Office of the Department of Health and Human Services contained no supportive allegations or pathology for the alleged impairments (Tr. 62-75). Furthermore, where the plaintiff affirmatively denied the existence of a hearing or sight impairment (Tr. 35), and where the Secretary observed plaintiff's ability to distinguish speech in a conversational tone of voice without undue difficulty (Tr. 10), it was not improper for the Secretary to attribute little, if any, weight to the audiological and ophthalmological test results submitted on behalf of plaintiff's claim.
This court also finds that the record does not support plaintiff's contention that the Secretary unduly emphasized plaintiff's ability to continue working for three additional years after having filed a worker's compensation claim (Plaintiff's Memorandum of Law, p. 11).
The Secretary correctly accorded little weight to medical reports submitted in connection with plaintiff's worker's compensation claim, and properly considered plaintiff's continuing work as further evidence supporting his conclusion that plaintiff's impairments were not sufficiently substantiated by either objective medical evidence or fact to warrant the granting of disability insurance benefits or SSI benefits.
Plaintiff also contends that the Secretary improperly downplayed her allegations of pain (Plaintiff's Memorandum of Law, p. 11). I am unable to agree. While it is clear that pain in and of itself may support a claim for benefits, Smith v. Califano, 637 F.2d 968, 973-74 (3d Cir. 1981), it is equally clear that the "ALJ has discretion to evaluate the credibility of a claimant" in making a determination regarding the extent of the pain alleged. Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979).
Where the plaintiff's testimony contains numerous contradictions with respect to past employment periods (Tr. 27, 42), ability to take care of her own household (Tr. 36-37, 65) and social contacts (Tr. 46, 65), the Secretary was not incorrect in finding her testimony lacking in credibility. Furthermore, it is noted that the plaintiff's allegations of chest pain, dizziness and headaches lack the confirmation of her only reported treating physician, Dr. Kingslow (Tr. 93-95), and were not mentioned by plaintiff during her interviews at the district office in March 1984 and December 1984 (Tr. 62-75). Thus, in light of the lack of clinical finding to support plaintiff's allegations, as well as the marked inconsistencies in her statements, the Secretary properly exercised his discretion in evaluating the credibility of the claimant.
Plaintiff's final contention is that this matter, at the very least, warrants remand for further consideration (Plaintiff's Memorandum, p. 14). The Secretary's determination may be remanded pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), where the claimant can show that "there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding. . . ." In Szubak v. Secretary of Health and Human Services, 745 F.2d 831, 833 (3d Cir. 1984), the Third Circuit stated that
As amended in 1980, § 405(g) now requires that to support a "new evidence" remand, the evidence must first be "new" and not merely cumulative of what is already in the record. E.g., Bomes v. Schweiker, 544 F. Supp. 72, 75-76 (D. Mass. 1982). Second, the evidence must be "material"; it must be relevant and probative. E.g., Chaney v. Schweiker, 659 F.2d 676, 679 (5th Cir. 1981). Beyond that, the materiality standard requires that there be a reasonable possibility that the new evidence would have changed the outcome of the Secretary's determination. Id.; see also Bomes, 544 F. Supp. at 76. An implicit materiality requirement is that the new evidence relate to the time period for which benefits were denied, and that it not concern evidence of a later acquired disability or of the subsequent deterioration of the previously non-disabling condition. See Ward v. Schweiker, 686 F.2d 762, 765 (9th Cir. 1982). Finally the claimant must demonstrate good cause for not having incorporated the new evidence into the administrative record. E.g., Brown v. Schweiker, 557 F. Supp. 190 at 192 (M.D. Fla. 1983).