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HANUSIEWICZ v. BOWEN

January 29, 1988

William Hanusiewicz, Plaintiff
v.
Otis R. Bowen, etc., Defendant



The opinion of the court was delivered by: THOMPSON

 This matter comes before the court on an appeal by plaintiff from a determination by the Secretary of the Department of Health and Human Services ["Secretary"]. Plaintiff, William Hanusiewicz, brings this action under Sections 216(i) and 223 seeking review of a final determination of the Secretary who denied plaintiff's application for disability benefits.

 PROCEDURAL HISTORY

 Plaintiff filed for disability insurance on March 28, 1985 alleging disability as of August 13, 1980 due to chemical poisoning and neurological damage. He initially was denied benefits on May 20, 1984 and upon reconsideration on November 21, 1985. Plaintiff then filed a request for a hearing. Following a hearing, an Administrative Law Judge ["ALJ"] denied plaintiff's request for benefits on June 2, 1986. The Appeals Council denied plaintiff's request for review on September 12, 1986 and the ALJ's decision became the decision of the Secretary. Plaintiff filed this appeal in U.S. District Court on October 22, 1986.

 Plaintiff had previously filed a request for disability on August 28, 1981 alleging disability beginning August 13, 1980. This claim was denied in an ALJ's decision dated September 27, 1982. Plaintiff's request for review was denied by the Appeals Council on May 3, 1983. Plaintiff did not pursue that application further.

 Mr. Hanusiewicz was born September 19, 1931 and was 54 years old at the time of the hearing. Plaintiff has a high school education and last worked on August 13, 1980. He is married and lives with his wife. Plaintiff has two children from a previous marriage. He worked as a printing press operator for 25 years and was involved in using chemicals on a daily basis. He also was required to lift heavy boxes and to stand at the machine all day.

 Plaintiff alleges that his disability is caused by chemical poisoning from his job as a pressman. Plaintiff testified that the chemical poisoning has caused nerve deterioration or neuropathy. Plaintiff also testified that in 1980 he was in a car accident and suffered back, hand, neck and head injuries. He stated that his physical problems now include limping, hands falling asleep, continuous peeling of skin on his hands, and pain in both legs. Plaintiff also stated that he has difficulty sitting. He stated he can only walk a half block and then he must slow down and rest because of leg and back pains. The plaintiff also claims that he can stand comfortably for no more than 10-15 minutes. Mr. Hanusiewicz testified that he has no skills other than those developed in his employment as a pressman. He has no education or vocational training beyond high school. Plaintiff does have a valid driver's license but only drives when necessary.

 Plaintiff testified that he no longer takes the prescription pain killers prescribed by his doctors because they were not helping him. Plaintiff has had no further medical treatment since November 1983 because there is nothing further the doctors can do for him. Plaintiff did see Dr. Varner in December 1985 to have his lungs checked because of shortness of breath; however, the doctor concluded that his lungs were clear.

 Plaintiff stated that he usually spends his days at home. He does not exercise, does not repair things around the house and does not do the laundry or cook. The plaintiff's mother and children have helped him meet expenses. He has no insurance and must pay all his doctors' bills in advance. His wife has just started a job as a substitute teacher.

 The ALJ concluded that plaintiff has shown that he would be unable to return to his prior job as a pressman. The ALJ found that the medical evidence established that the claimant has mild, peripheral neuropathy, but that he does not have an impairment or combination of impairments listed in or medically equal to one listed in Appendix 1, Subpart P, Regulation No. 4. The ALJ also concluded that claimant's testimony regarding pain and his inability to engage in any substantial gainful activity is not credible when viewed in the context of the overall record. The ALJ concluded that as there appeared to be no evidence of tenderness, muscle spasms or atrophy of the musculature, plaintiff's complaints of pain did not correspond to any objective findings.

 DISCUSSION

 A decision of the Secretary concerning disability benefits must be upheld by the court if an examination of the record reveals substantial evidence supporting the Secretary's conclusion. 42 U.S.C. § 405(g). 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, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971) (quoting, Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938)); Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981). If there is only a slight preponderance of the evidence on one side or the other, the Secretary's finding should be affirmed. Toborowski v. Finch (Secretary of Health, Education and Welfare), 363 F. Supp. 717 (E.D. Pa. 1973). Thus, the court is to look at the record as a whole and then determine whether or not there is substantial evidence to support the Secretary's decision. Taybron v. Harris, 667 F.2d 412, 413 (3d Cir. 1981) (quoting Hess v. Secretary of Health, Education and Welfare, 497 F.2d 837, 841 (3d Cir. 1974)). Plaintiff has the initial burden of demonstrating by medical evidence that he is unable to return to his former occupation. Santise v. Schweiker, 676 F.2d 925, 938 (3d Cir. 1982) (quoting Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir. 1979)). Once plaintiff has met that burden, then the burden shifts to the Secretary who must establish with substantial evidence that plaintiff, in view of his age, education, work experience and degree of impairment, has the ability to engage in alternative substantial gainful employment. Podedworny v. Harris, 745 F.2d 210 (3d Cir. 1984).

 In deciding whether an applicant is entitled to disability benefits the ALJ must determine (1) whether the claimant is currently working; (2) if not, whether the impairment meets or equals an impairment listed in Appendix 1 of the regulations; (3) if not, whether the claimant retains the residual functional capacity to do his or her past work; and (4) if not, whether he or she can perform any other jobs existing in the national economy. Santise, supra. Although the applicable regulation, 20 C.F.R. § 404.1520, includes a fifth criterion related to a subjective measure of the severity ...


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