prevent him from standing, sitting and walking in a regular work environment, although his ability to lift and carry was restricted to a maximum of ten pounds.
Another consultant for the Department, Dr. Humberto M. Cravioto, a neurologist, examined the plaintiff on January 23, 1986. Dr. Cravioto reported that plaintiff did not appear to be in acute distress and was well oriented. He noted muscle weakness in the left arm and hand and pain in the left shoulder, elbow and wrist. Dr. Cravioto found no other evidence of pain or neurological disorders. Dr. Cravioto expressed the opinion that plaintiff was not willing to perform the required tests, thereby rendering the results suspect.
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. Consolidation 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). Although a treating physician's report is ordinarily entitled to some evidentiary weight, the ALJ is not bound to accept plaintiff's physician's conclusion without weighing it against other such evidence. Baeder v. Heckler, 592 F. Supp. 1489, 1492 (D.N.J. 1984), aff'd, 768 F.2d 547 (3d Cir. 1985). Based on the above, the ALJ acted within his authority by considering all of the medical evidence and accepting that which he deemed most compelling.
Contrary to plaintiff's contention that no vocational evidence was proffered at the hearing, the ALJ paid particular attention to the testimony of two vocational specialists. Mr. Edmond Provder, expert for the plaintiff, expressed an opinion that plaintiff suffered from a disability resulting from a combination of emotional and physical factors. The ALJ dismissed this opinion, noting that Mr. Provder lacked the medical and psychiatric expertise to render such an opinion.
The ALJ also received testimony at the supplemental hearing from Ms. Anna Mooney, a vocational expert from the panel approved by the Secretary of the Department of Health and Human Services. Ms. Mooney testified that, despite plaintiff's impairment, there exist a significant number of sedentary, unskilled jobs in the national economy which plaintiff could perform without hardship, as they could be performed with one hand. Included among the pertinent jobs were grinding machine operator, stringing machine tender, laminator in the leather industry, label picker in the fabric industry, strap buckler in the garment industry and tipping machine operator in the manufacture of umbrellas. Such jobs would require the plaintiff to remain seated six to eight hours daily, occasionally standing and lifting a maximum of ten pounds with one arm. It should be noted that the ALJ acknowledged plaintiff's own testimony that he could lift ten to fifteen pounds with his right hand, and five pounds with his left hand.
There is no question that plaintiff suffers from a major impairment of his left upper extremity. The question before the ALJ was whether this impairment was sufficient to render plaintiff permanently disabled. The ALJ examined all the evidence, including the reports of the two vocational specialists. After careful consideration, the ALJ determined that plaintiff has a limited range of motion of his left shoulder, decreased grip strength, diminished muscle strength and some decrease in gross and fine finger manipulation. The ALJ also found, however, that plaintiff had not lost complete use of his extremity, and that none of his alleged complaints met the disability requirements under the Act within the meaning of 20 C.F.R. 404.1520(f). Disability, therefore, was denied.
In the present case, plaintiff met the burden of proof of showing that he had not worked since August 29, 1981. Upon finding that a claimant is not engaged in a substantial gainful activity, the ALJ must determine, solely on the basis of medical evidence, whether the impairment(s) meets or equals a listed impairment in 20 C.F.R. Appendix 1, Subpart P, Reg. No. 4, of the Regulations. If the impairment is listed or is the equivalent of an impairment listed in Appendix 1, the claimant is found disabled without considering age, education and work experience. 20 C.F.R. § 404.1520(d). If, however, determination cannot be made on the basis of medical facts alone, then the ALJ must evaluate the claimant's residual functional capacity in comparison to the physical and mental demands of the individual's past work. If the ALJ determines that the claimant possesses the residual functional capacity to perform his or her past work, then the claimant is found not disabled. 20 C.F.R. § 404.1520(e). In the present case, the ALJ found that plaintiff did not meet the impairment standards set forth by 20 C.F.R. Appendix 1. He also found, however, that he did not have enough residual functional capacity to return to any of his old occupations. The ALJ did find that plaintiff was capable of performing a series of jobs that did not require lifting more than ten to fifteen pounds with his right hand, and more than five pounds with his left.
Plaintiff claims error in this finding, contending that it is not supported by substantial evidence in the record. I find ample evidence in the record to support the ALJ's decision, including the findings of Drs. Schwarz and Cravioto, both of whom questioned plaintiff's veracity and willingness to perform certain tests which they considered him capable of performing.
In light of the medical evidence presented and plaintiff's testimony, I believe the finding of the ALJ is supported by substantial evidence. For the reasons stated above, the decision of the Secretary is affirmed. An order accompanies this opinion. No costs.
© 1992-2004 VersusLaw Inc.