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BENJAMIN v. BOWEN

December 30, 1987

Elisha A. Benjamin, Plaintiff,
v.
Otis R. Bowen, M.D., Secretary of Health and Human Services, Defendant



The opinion of the court was delivered by: FISHER

 This is an action brought pursuant to § 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 (Secretary) 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.

 Plaintiff, Elisha A. Benjamin, filed an application for a period of disability, disability benefits, and supplemental security income benefits on May 19, 1983. The application was denied initially and on reconsideration. Plaintiff requested a hearing, which was held on February 16, 1984. The administrative law judge (ALJ) before whom plaintiff appeared considered the case de novo and on May 25, 1984, found that plaintiff was not under a disability. The decision of the ALJ became the final decision of the Secretary when the Appeals Council denied plaintiff's request for review on August 7, 1984.

 Subsequently, plaintiff filed suit in the United States District Court for the District of New Jersey. On August 12, 1985, the district court remanded the case to the Secretary for further administrative action. The Appeals Council, after vacating its denial of plaintiff's request for review, remanded the case to the ALJ on May 30, 1985. The ALJ held a hearing on December 19, 1985, and on April 18, 1986, issued his decision finding that the plaintiff was not under a disability. This decision became final on July 18, 1986, when the Appeals Council adopted the findings and conclusions of the ALJ's recommended decision.

 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." Baeder v. Heckler, 768 F.2d 547, 551 (3d Cir. 1985); 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). A person is disabled within the meaning of this statute "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." 42 U.S.C. § 423(d)(2)(A).

 The applicable standards for disability evaluation under § 423 are enumerated in 20 C.F.R. § 404.1520. 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 & Welfare, 592 F. Supp. 683, 685 (D.N.J. 1982); Torres v. Harris, 502 F. Supp. 518, 521 (E.D. Pa. 1980).

 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 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), which has been defined as "more than a mere scintilla . . . 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).

 To enable this court to perform properly its function of review, the administrative decision "should be accompanied by a clear and satisfactory explanation of the basis on which it rests," Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981); and "examiner's findings should be as comprehensive and analytical as feasible," Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir. 1974), cert. denied, 420 U.S. 931, 43 L. Ed. 2d 403, 95 S. Ct. 1133 (1975). The ALJ should indicate not only the evidence which supports his or her conclusion, but also any "significant probative evidence" that was rejected and the reasons for so doing. Cotter v. Harris, 642 F.2d at 705.

 Plaintiff contends that the Secretary selectively considered only those portions of the record which support a finding of nondisability. However, it is the opinion of this court that the ALJ considered each of the medical and psychiatric reports submitted in support of plaintiff's allegations that the injuries he suffered in two automobile accidents render him disabled.

 Plaintiff was born in Antigua, West Indies, on December 9, 1949, and emigrated to this country in 1968. After arriving in the United States, plaintiff worked as a bartender and waiter for several years. On August 29, 1981, plaintiff was involved in an automobile accident which left him hospitalized with a fracture of the left humerus and a laceration of the scalp. Surgical treatment consisted of an open reduction internal fixation of the fracture of the left humerus through a semi-open technique with a Rush rod. Cervical spine and skull X-rays taken at that time showed no fractures or arthritic changes in the spine.

 After discharge from the hospital, plaintiff became the patient of Dr. Jerome Margolies, his current personal physician. Dr. Margolies stated that on September 17, 1981, plaintiff complained of pain, tenderness and spasticity in the left shoulder, right wrist and right ankle, both at rest and during range of motion tests. Plaintiff also complained of headaches and dizziness, which, in Dr. Margolies's opinion, were residual effects of the cerebral concussion plaintiff suffered during the accident. Dr. Margolies prescribed physical therapy and set up a course of neurological examinations. Dr. Margolies further noted that plaintiff's blood pressure was normal at this time.

 On September 25, 1981, Dr. Munir Ahmed, plaintiff's treating physician at the hospital, examined plaintiff and determined that healing of the fracture was excellent, and a neurovascular examination showed nothing abnormal. Dr. Ahmed added that on October 23, 1981, X-rays showed excellent healing, with full range of motion and no deformity whatsoever. At this time plaintiff was discharged from further care.

 Six months later, plaintiff returned to Dr. Margolies complaining of the same symptoms, and physical therapy was resumed. Then, on January 24, 1983, plaintiff was involved in another accident, which resulted in injuries to his forehead, right eye, right jaw, right side of the neck, left hand, back of the neck and upper back. The record of an examination the following day indicated pain, tenderness and spasticity in the paravertebral muscles of the cervical and dorsal aspects of the spine at rest and during range-of-motion studies. As a result of this accident, plaintiff continued to receive physical therapy.

 On June 2, 1983, plaintiff returned to the hospital. At this time, Dr. Ahmed determined that plaintiff's pain was caused by the Rush rod pressing against the acromium. The Rush rod was subsequently removed. Despite this treatment, plaintiff continued to complain of the same symptoms. On June 14, 1983, Dr. Margolies declared plaintiff totally disabled. Over the course of the next eight months, Dr. Margolies submitted several medical reports detailing treatment and evaluation of ...


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