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Hagy v. Apfel

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY


July 7, 1999

ANN HAGY ON BEHALF OF DOUGLAS HAGY (DECEASED), PLAINTIFF,
V.
KENNETH S. APFEL, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.

The opinion of the court was delivered by: Simandle, District Judge:

HONORABLE JEROME B. SIMANDLE

OPINION

This matter is presently before the court pursuant to section 205(g) of the Social Security Act (the Act), as amended, 42 U.S.C. § 405(g) to review the final decision of the Commissioner of the Social Security Administration ("Commissioner"), denying Douglas Hagy's claim for disability insurance benefits under Title II of the Social Security Act. The main issue to be decided is whether the Commissioner's refusal to order a consultative exam requested by claimant when no doctor suggested it should be done and no conflict existed in the record, the resolution of which was necessary to a sound determination of the case, constitutes error which would invalidate the determination that claimant was "not disabled" withing the meaning of the Act. For the reasons stated herein, this court finds that the Commissioner's refusal to order the consultative exam was proper. Therefore, the decision denying Douglas Hagy a period of disability will be affirmed.

I. Background

A. Procedural History

The plaintiff's decedent, Douglas N. Hagy ("claimant") applied for disability insurance benefits under Title II and supplemental security income disability assistance payments under Title XVI of the Social Security Act on October 16, 1995. (R. 69-71; 93-95; 110-115.) After his claims were denied initially and upon reconsideration, claimant requested a hearing before an Administrative Law Judge ("ALJ"). (R. 73- 5; 96-9; 100.)

A hearing at which claimant was represented by counsel was held on April 23, 1997, before the Honorable Daniel G. Heely. (R. 36-68.) On June 18, 1997, the ALJ issued his opinion finding that the record established that claimant had mild degenerative joint disease and suffered from alcohol abuse, but that he did not suffer from an impairment or combination of impairments that met or equaled a listed impairment in 20 C.R.F. Part 404, Subpart P, Appendix 1. (R. 18.)

The ALJ found further that claimant's testimony as to the limitations imposed on him by his back condition were not supported by the record to the extent claimed. (R. 19.) Accordingly, the ALJ determined that the claimant retained the residual functional capacity to perform medium work, including his past relevant work as a surveyor, and was, therefore, "not disabled" within the meaning of the Social Security Act. (Id.) The ALJ's decision became the final decision of the Commissioner when the Appeals council denied claimant's request for review on March 21, 1998. (R. 3.)

Shortly after the ALJ issued his June 18, 1997 opinion, Douglas Hagy died, on August 9, 1997. (R. 7.) Plaintiff's counsel supplemented the record by letter of September 2, 1997, (R. 5-6), attaching Mr. Hagy's death certificate (R. 7), which ascribed the cause of death to upper gastrointestinal bleeding secondary to cirrhosis of the liver. (Id.) This appeal was filed on behalf of his estate ("plaintiff") by his mother, Ann Hagy, on April 1, 1998.

B. Personal and Medical History

Claimant was born on April 25, 1952 (R. 40.) He was a high school graduate and had been working supervising a construction layout crew for a surveying company from 1984 until 1994 when, he testified, severe pain in his lower back caused by arthritis forced him to leave his job. (R. 41-2.) Claimant did not work from that point on and maintained in his testimony that the pain in his back continued to preclude him from doing so. At the time of the hearing, claimant testified that he was living with his parents. (R. 42.)

According to the record, claimant sought medical treatment for the first time on July 17, 1995 when an MRI was performed. Dr. Sheldon Karasick reported that the test showed mild degenerative disc and joint disease. (R. 124-5.) Following this, claimant underwent a series of examinations with Dr. Desmond Cheng at Kennedy Memorial Hospital-Family Health Center from September 5, 1995 through May 23, 1996. On September 5, 1995, claimant was diagnosed with low back pain and alcohol abuse. (R. 132.) On October 14, 1995, the doctor noted that claimant was still abusing alcohol, prescribed Naprosyn for pain, and recommended physical therapy. (R. 135.) The findings of a visit on December 6, 1995 were essentially the same, and an additional drug, Norflex, was prescribed for pain. (R. 136.)

Then on March 21, 1996, claimant complained of pain in his hip and numbness of his upper left leg. Claimant had not gone to physical therapy and had not taken the Norflex because, he said, it was too sedating. Claimant complained also of limitations in his range of motion. (R. 137.) When claimant visited the emergency room of Kennedy Memorial Hospital on April 3, 1996, a recommendation was made that he undergo physical therapy. At that time he complained of constant pain which increased with sitting or standing. (R. 142 and 144-47.)

On April 12, 1996, claimant complained of bleeding gums and refused to consider giving up alcohol (R. 138), and on April 19, 1996, he complained again of back and hip pain and stated that he was not taking his medication but was cutting down on his alcohol consumption. Claimant also underwent physical therapy with no improvement. Dr. Cheng prescribed Naprosyn for pain and stated that claimant could not work at any occupation at that time. However, this was Dr. Cheng's subjective opinion. There was no additional medical evidence indicating that claimant's activities were limited to that degree. (R. 139.) On May 23, claimant's condition was unchanged, and Dr. Cheng recommended home exercise. (R. 140.)

Within the same time frame, on January 1, 1996, claimant saw consultative physician, Dr. Armando A. Montiel, at the request of the Social Security Administration. Dr. Montiel confirmed the diagnosis of mild degenerative joint disease but noted that claimant manifested no specific physical limitations as a result, no neurological focal deficits, and was able to engage in a normal range of motion. Claimant complained of sharp lower back pain, which he said was relieved by a couple beers. (R. 127-9.) During the same month, a review of all the available medical evidence by a non-examining physician obtained by the agency resulted in findings that claimant could walk, stand, or sit for six hours in an eight hour day, lift 50 pounds occasionally and 25 pounds frequently, had a virtually unaffected range of motion, and suffered no neurological deficits. (R. 82-9.)

Claimant underwent another MRI on June 4, 1996, which Dr. Ira Stark reported showed degenerative disc disease that did not encroach upon the nerve roots or thecal sac. (R. 149.) Then, on June 11, 1996, Dr. Enrico Marcelli agreed that claimant's MRI showed degenerative disc disease and recommended home exercise. (R. 143.) Dr. Cheng reported on June 19, 1996, that the MRI showed disc bulges. Claimant was not taking any medications at that time. (R. 163.)

On June 26, 1996, Dr. Spinosi, who saw claimant beginning on September 5, 1995, concurred with Dr. Cheng's opinion that claimant could not work at any occupation. Again, however, no specific medical evidence suggests that claimant was limited to that degree. (R. 164.) On August 28, 1996, claimant again saw Dr. Cheng. His back condition was unchanged, and he said he was trying to cut down on his alcohol consumption. Diagnosis was lumbar strain, disc bulges, and alcohol abuse. There is no more medical evidence in the record until a year later, presumably because claimant was without medical insurance during that time. (R. 67.) On August 9, 1997, a month after the ALJ's determination that claimant was not disabled, claimant died. (R. 7.) The death certificate lists upper gastrointestinal bleeding, gastric varices, cirrhosis of the liver, and alcohol use as the immediate causes of death. (Id.)

II. Discussion

A. "Disability" Defined and Burdens of Proof

The Social Security Act defines "disability" for purposes of plaintiff's entitlement to 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. § 1382c(a)(3)(A). Under this definition, a claimant qualifies as disabled "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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work." 42 U.S.C. § 1382c(a)(3)(B).

The Commissioner has promulgated regulations for determining disability applicable to Disability Insurance cases. See 20 C.F.R. §§ 404.1501-404.1599. Under these regulations, substantial gainful activity is defined as "work that - (a) involves doing significant and productive physical or mental duties; and (b) is done (or intended) for pay or profit." 20 C.F.R. § 404.1510. Importantly, this definition presupposes a regular, continuing, and sustained ability to perform such work. Kangas v. Bowen, 823 F.2d 775, 778 (3d Cir. 1987).

The Commissioner has promulgated regulations that determine disability by application of a five-step sequential analysis codified in 20 C.F.R. § 404.1520. The Commissioner evaluates each case according to a five-step process until a finding of "disabled" or "not disabled" is obtained. 20 C.F.R. § 404.1520(a).

This five-step process is summarized as follows:

1. If the claimant currently is engaged in substantial gainful employment, he will be found "not disabled."

2. If the claimant does not suffer from a "severe impairment," he will be found "not disabled."

3. If the severe impairment meets or equals a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1 and has lasted or is expected to last for a continuous period of at least twelve months, the claimant will be found "disabled."

4. If the claimant can still perform work he has done in the past ("past relevant work") despite the severe impairment, he will be found "not disabled."

5. Finally, the Commissioner will consider the claimant's ability to perform work ("residual functional capacity"), age, education and past work experience to determine whether or not he is capable of performing other work which exists in the national economy. If he is incapable, a finding of disability will be entered. On the other hand, if the claimant can perform other work, he will be found not to be disabled. 20 C.F.R. § 404.1520(b)-(f).

Entitlement to benefits is dependent upon a finding that the claimant is incapable of performing some other type of work in the national economy.

This analysis involves a shifting burden of proof. Wallace v. Secretary of Health & Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983). In the first four steps of the analysis, the burden is on the claimant to prove every element of her claim by a preponderance of the evidence. In the final step, however, the Commissioner bears the burden of proving that work is available for the petitioner: "Once a claimant has proved that he is unable to perform his former job, the burden shifts to the Commissioner to prove that there is some other kind of substantial gainful employment he is able to perform." Kangas, 823 F.2d at 777. See Olsen v. Schweiker, 703 F.2d 751, 753 (3d Cir. 1983).

B. Standard of Review

A reviewing court must uphold the Commissioner's factual decisions if they are supported by "substantial evidence." 42 U.S.C. §§ 405(g), 1383(c)(3); Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992), cert. denied, 507 U.S. 924 (1993). "Substantial evidence" means more than "a mere scintilla." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. The inquiry is not whether the reviewing court would have made the same determination, but, rather, whether the Commissioner's conclusion was reasonable. See Brown, 845 F.2d at 1213. Thus, substantial evidence may be slightly less than a preponderance. See Hanusiewicz v. Bowen, 678 F. Supp. 474, 476 (D.N.J. 1988).

Some types of evidence will not be "substantial." For example,

[a] single piece of evidence will not satisfy the substantiality test if the [Commissioner] ignores, or fails to resolve, a conflict created by countervailing evidence. Nor is evidence substantial if it is overwhelmed by other evidence - particularly certain types of evidence (e.g. that offered by treating physicians) - or if it really constitutes not evidence but mere conclusion. Wallace, 722 F.2d at 1153 (citing Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)).

The reviewing court, however, does have a duty to review the evidence in its totality. See Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984). In order to do so, "a court must `take into account whatever in the record fairly detracts from its weight.'" Schonewolf v. Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (quoting Willbanks v. Secretary of Health & Human Servs., 847 F.2d 301, 303 (6th Cir. 1988) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951))). The Commissioner has a corresponding duty to facilitate the court's review: "[w]here the [Commissioner] is faced with conflicting evidence, he must adequately explain in the record his reasons for rejecting or discrediting competent evidence." Ogden v. Bowen, 677 F. Supp. 273, 278 (M.D. Pa. 1987) (citing Brewster v. Heckler, 786 F.2d 581 (3d Cir. 1986)).

As the Third Circuit has held, access to the Commissioner's reasoning is indeed essential to a meaningful court review:

Unless the [Commissioner] has analyzed all evidence and has sufficiently explained the weight he has given to obviously probative exhibits, to say that his decision is supported by substantial evidence approaches an abdication of the court's duty to scrutinize the record as a whole to determine whether the conclusions reached are rational. Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978). Nevertheless, the district court is not "empowered to weigh the evidence or substitute its conclusions for those of the fact-finder." Williams, 970 F.2d at 1182.

Moreover, apart from the substantial evidence inquiry, a reviewing court is entitled to satisfy itself that the Commissioner arrived at her decision by application of the proper legal standards. Friedberg v. Schweiker, 721 F.2d 445, 447 (3d Cir. 1983); Curtin v. Harris, 508 F. Supp. 791, 793 (D.N.J. 1981). When the ALJ fails to consider all relevant regulations in making a determination, the case must be remanded. Coulter v. Weinberger, 527 F.2d 224, 231 (3d Cir. 1975).

III. Analysis

Both parties agree that the Title XVI claim for Social Security Income benefits has been mooted by claimant's death. However, plaintiff challenges the Commissioner's decision denying her son a period of disability insurance benefits under Title II of the Act, benefits which, if owed, would accrue to his estate.

Plaintiff first asserts that the ALJ failed to fulfill his obligation to develop the record by declining to order neurological testing to detect organic brain damage due to claimant's prolonged alcohol abuse. Second, plaintiff claims that the ALJ failed to consider claimant's illnesses in combination in finding that he retained the residual functional capacity to perform his past relevant work as a surveyor. Third, plaintiff claims that the ALJ erred in rejecting the opinions of claimant's treating physicians without offering an adequate explanation, and finally, that the ALJ's rejection of claimant's subjective complaints was not supported by substantial evidence.

For the following reasons, this court disagrees with plaintiff's assertions and finds that the ALJ's determination was properly made based on substantial evidence. The court will therefore affirm the Commissioner's decision.

A. Whether the ALJ failed to fulfill his duty to fully develop the record by declining to order the neurological testing requested by claimant's counsel.

The ALJ has a duty "to develop the record fully and fairly." Thompson v. Sullivan, 878 F.2d 1108, 1110 (8th Cir. 1989). The regulations do provide for the purchase of testing when evidence is not contained in the record or to resolve conflict or ambiguity in the medical evidence that is available. 20 C.F.R. §§ 404.1519a(b), 416.916(b). Further, it is appropriate for the ALJ to order such testing when the claimant cannot afford it. Diller v. Bowen, 654 F.Supp. 628 (W.D. Pa. 1987).

However, 20 C.F.R. § 404.1519a(b) states that medical testing may be purchased when "the evidence as a whole, both medical and non-medical, is not sufficient to support a decision." This court must review with deference the ALJ's determination that the evidence of record was sufficient to support a decision that claimant was not disabled due to organic brain damage caused by alcohol abuse. This is especially true in regard to his Title II claim for disability benefits. "Under Title II . . . it is the claimant's burden to prove, by medical evidence, that she cannot return to past employment." Ferguson v. Schweiker, 765 F.2d 31, 36 (3d Cir. 1985).

Claimant presented no evidence, not even in his own testimony of his subjective complaints, of symptoms of organic brain damage. No other witnesses testified to such symptoms, and none of the medical records indicate anything of the kind. The doctors' reports simply state that claimant abused alcohol and they focus mainly on his back and joint problems, as to which there is no evidence of disability. In fact, the reports of Dr. Montiel and the non-examining physician are uncontradicted in explicitly stating that claimant did not have any neurological deficit.

Additionally, though claimant wrote on his Reconsideration Disability Report, dated February 19, 1996, that he suffered from organic brain damage secondary to alcohol abuse (R. 79-80), he did not describe any symptoms associated with his claim at his hearing, nor did any physician suggest that diagnosis or the need to rule it out as a possibility. Claimant's counsel seems to have been the only party seriously asserting that claimant suffered symptoms of brain damage at the hearing. Counsel also stated in a letter to the Appeals Council that "[t]he claimant was obviously ill. He died shortly after the hearing. His illness should have been obvious at the hearing." (R. 6.)

However, while it was obvious to the ALJ was that claimant was suffering from alcohol abuse, it appears from the record that it was not obvious that plaintiff suffered impairments secondary to alcoholism, and, under the 1996 amendments to the Social Security Act, alcoholism alone cannot be considered in a determination of disability. See Pub. L. 104-121, 110 Stat. 847 (amending 42 U.S.C. § 423(d)(2)(eliminating alcohol and drug abuse as bases for obtaining disability benefits), discussed infra. Though the plaintiff argues that it should have been obvious to the ALJ that the claimant suffered secondary effects of alcohol abuse by his observation of claimant at the hearing, this court cannot judge the ALJ's determination in this regard because the ALJ was in a unique position of viewing claimant, the benefit of which this court has not had. Rather, this court must limit its review to the evidence of record and has no choice but to find that claimant failed to produce enough evidence to lead a reasonable person to believe that testing for brain damage was necessary to a sound determination and that the ALJ was, therefore, not compelled to order the type of test claimant's counsel requested.

As stated earlier, plaintiff's Title XVI claim for Social Security Income benefits was mooted by claimant's death, and thus Title XVI's standards are not relevant to this appeal. But even in regard to that claim, the ALJ's decision was supported by substantial evidence. Under Title XVI, the burden on the claimant of producing medical evidence is less because "under a needs program, it would be unreasonable to expect a claimant to pay for the evidence necessary to establish disability or blindness or even to provide the same extent of medical documentation required under Title II of the Social Security Act. Thus, in an SSI case, if there is insufficient medical documentation or if the medical documentation is unclear, it is incumbent upon the Secretary to secure any additional evidence needed to make a sound determination." Ferguson, 765 F.2d at 36 n. 4 (quoting from the legislative history of the Act, H.R. No. 92-231 reproduced in 1972 U.S. Code Cong. & Ad. News 4989-92, 5133 and 5134).

Even if this lower burden applied here, though, claimant failed to produce evidence sufficient to necessitate the ordering of the test. Though SSI claims have been remanded when the ALJ has failed to develop the record fully enough, the claimants in those precedents have always provided sufficient evidence to give rise to a reasonable belief that the testing was needed to provide enough evidence to make a sound determination. In Diller v, Bowen, 654 F.Supp. 628, 629-30 (W.D.Pa. 1987), the claimant testified extensively to her impairments and produced corroborating medical opinion. The test in question was, in fact, ordered by her doctor, but she could not afford it, and the District Court ruled that the ALJ had erred in not ordering the appropriate tests. Similarly, the SSI claimant in Dozier v. Heckler, 754 F.2d 274, 275 (8th Cir. 1985), testified to her impairments. Her daughter and a social worker testified as witnesses to the symptoms claimant alleged, and there was some supportive medical opinion.

Additionally, in Reeves v. Heckler, 734 F.2d 519 (11th Cir. 1984), the plaintiff's treating physician indicated severe problems and the Administration's consulting doctor recommended evaluation. Id. at 522. Despite that, the ALJ did not order evaluation by an orthopedic specialist and the 11th circuit noted that it would be reversible error for an ALJ not to order a consultative examination when such an evaluation is necessary for him to make an informed decision. Id. at 522 n. 1. As a final example, the Eight Circuit found in Boyd v. Sullivan, 960 F.2d 733, 734-36 (8th Cir. 1992), that the ALJ erred in not ordering a consultative examination in connection to claims of emotional and mental problems when the record specifically supported these claims and evidence clearly indicated claimant suffered from conditions known to cause such problems.

Clearly the instant case is distinguishable from the preceding examples in regard to the type of evidence produced by the claimants. There is no indication in the case law that the ALJ erred in his decision in the instant case. These cases do indicate that an ALJ should be reversed for failure to order a consultative examination when such an exam is necessary to the ALJ's determination. They also indicate, however, that in each of these cases, a doctor, claimant, or family member testified as to the claimant's problems which warranted further study, or a doctor ordered tests to be performed which the claimant could not afford.

In the instant case, claimant's own doctors indicated affirmatively that he had no neurological problems and the claimant himself testified to no memory loss or concentration problems. Even if the ALJ observed or should have observed physical problems in the claimant during his testimony, there is nothing this court can review to determine if the ALJ erred in his observations. It may be unfortunate in this sad case that the ALJ did not order the consult; however, we cannot say, based on all of the evidence before the ALJ, that the ALJ needed the consult to resolve any conflict or address an issue raised by a doctor or by the claimant's own testimony. Therefore, this reviewing court cannot say that the ALJ committed reversible error.

Finally, the case law that plaintiff cites in support of her argument is not relevant to the case at hand. Plaintiff relies mainly on Purter v. Heckler, 171 F.2d 682, 697-98 (3d Cir. 1985) and McShea v. Schweiker, 700 F.2d 117 (3d Cir. 1983) in support of the proposition that the ALJ has some special or heightened duty to develop the record where alcoholism is present. But these cases were decided before the Social Security Act was amended in 1996, when it would have been possible to establish disability based on alcoholism alone. On March 29, 1996, amendments to the Social Security Act eliminated alcoholism and drug abuse as bases for obtaining social security benefits. Senior Citizens' Right to Work Act of 1996, Pub. L. 104-121, 110 Stat. 847 (amending 42 U.S.C. § 423(d)(2)). The new provision applies to all final agency decisions made after March 29, 1996. Mapes v. Chater, 82 F.3d 259, 263 n.10 (8th Cir. 1996).

Section 105(a)(1) of the Act, codified as 42 U.S.C. § 423(d)(2)(c), provides that "[a]n individual shall not be considered to be disabled for purposes of this title if alcoholism or drug addiction would (but for this subparagraph) be a contributing factor material to the Commissioner's determination that the individual is disabled." This applies both when alcoholism is the only factor or a contributing factor supporting a finding of disability. This court, having a duty to determine and apply the laws enacted by Congress, is not permitted to second guess whether this restriction upon benefits where the alleged disability arises from alcoholism is enlightened or humane social policy.

The relevant holdings of McShea and Purter have been effectively overruled, their principles rendered irrelevant, in light of the changes in the law. In each of them, the claims were remanded because the ALJ failed to make a determination of the nature and extent of the alcohol problem and whether it was in itself disabling. Because alcoholism alone can no longer be considered as a factor in determining disability, the cases plaintiff cites in support of her argument are not on point. In effect, plaintiff asserts no legal basis upon which to find the ALJ had a heightened duty to develop the record in this case by ordering the requested test.

The court recognizes the unfortunate possibility that claimant may have indeed suffered secondary effects of alcoholism but failed, precisely because of the effects of his alcohol abuse on his ability to manage his affairs effectively, to develop and submit evidence on his own behalf. On the other hand, no physician who treated Mr. Hagy, and no lay witness, ever suggested that some sort of organic brain disorder was preventing him from engaging in gainful employment. This court does not have the authority to reverse or remand when there is, as in this case, no basis in the record upon which to issue such an order. Plaintiff is not even entitled to have the record viewed in the context of the lower burden of proof imposed on an SSI claimant because claimant's SSI claim was, as aforementioned, mooted by his death.

Even so, under either burden of proof, the court finds that claimant did not establish sufficient evidence of symptoms of brain damage due to alcohol abuse to require as matter of law that the ALJ order the requested tests. Neither do there exist conflicts or ambiguities in the medical evidence that the ALJ needed to resolve. Therefore, this court finds that the ALJ was within his discretion in refusing to order the testing claimant requested.

B. Whether the ALJ failed to consider claimant's illnesses in combination in finding that he retained the residual functional capacity to perform his past relevant work as a surveyor.

Plaintiff asserts in her brief that the ALJ failed to consider claimant's orthopedic problems in combination with the impairments he suffered due to secondary effects of alcohol abuse. Plaintiff points out that claimant wrote in his application that it was "impossible to think clearly or concentrate on whatever (he does)." (R. 110.) Claimant attributed this to the pain in his back, and now plaintiff contends that this court should attribute it instead to organic brain damage. But this court cannot substitute either its own or plaintiff's judgments for those actually given by claimant. Plaintiff also points as evidence to the fact that claimant testified that he had no problem with his memory but that his mother would disagree. (R. 63.) However, his mother did not testify, and claimant's estimation of her opinion, especially in hindsight, is hardly relevant evidence in determining whether the ALJ erred.

Plaintiff points out that claimant testified that he sometimes experienced black outs when he drank (R. 64) and that he had shaky hands. (R. 60-1.) The court notes that these are common effects of excessive alcohol consumption and do not in themselves constitute evidence of brain damage. The ALJ conceded that claimant abused alcohol. The presence of alcoholism or drug addiction is simply no longer permitted to be considered as a contributing factor as a part of a determination of disability due to 42 U.S.C.A. § 423 (d)(2)(C), supra. The relevant question under the current law is whether the alcohol consumption has resulted in secondary effects which would continue if the alcohol consumption were stopped and whether those secondary effects would, alone or in combination with other impairments, constitute a disability under the Act. Specifically, Public Law 104-121 states the requirement that alcoholism and drug abuse manifest itself in objective, concrete physical impairments in order to qualify as disabling. 42 U.S.C.A. § 423(d)(2)(C). Thus, end-organ damage, like cirrhosis of the liver, secondary to alcohol abuse, or mental impairments, like schizophrenia, do bear upon the determination of disability. 20 C.R.F. Part 404, Subprt. P, App. 1, Part A, §§ 5.05, 12.03, 12.06.

Plaintiff alleges that claimant may have had organic brain damage secondary to alcohol abuse that would be irreversible. Even if this contention was supported by medical evidence, it would not constitute disability per se. Rather it would be considered in light of its effect on the claimant's ability to perform work as a factor in determining disability. Unfortunately, as discussed earlier, claimant presented no evidence concerning symptoms of brain damage. Similarly, he offered no evidence of or testimony about symptoms, disabling or otherwise, associated with liver damage. Though the fact that internal bleeding caused by cirrhosis of the liver is listed as his cause of death is proof enough for this court that his liver was damaged by alcohol abuse, it does not follow that claimant ever suffered disabling symptoms as a result.

Plaintiff asserts that the claimant's disability should be presumed in light of his death. But, though it is probable claimant was not well in the weeks preceding his death, there are no illnesses or conditions of record to consider in combination with claimant's orthopedic condition. The claimant participated fully in his hearing, including giving appropriate, coherent responses to questions. (R. 40-65.) Therefore, this court finds that it is not possible that the ALJ failed to properly consider claimant's impairments in combination. The record supports the ALJ's determination that there do not exist in the record impairments that could alone or in combination constitute disability. Additionally, there is no objective evidence to contradict the finding that claimant retained the capacity to do medium work. Accordingly, there was substantial evidence for the ALJ to conclude that claimant retained the residual functional capacity to perform his past relevant work as a surveyor.

C. Whether the ALJ erred in rejecting the opinions of claimant's treating physicians without offering an adequate explanation.

The Social Security Administration regulations regarding the evaluation of evidence from treating physicians are found in 20 C.F.R. § 404.1527. In explaining the nature of a treating physician's relationship with a patient and the weight given to their opinions, the regulations provide that the Social Security Administration will give more weight to opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations. 20 C.F.R. § 404.1527(d)(2). Generally, the regulations provide that the opinion of a treating physician will be given controlling weight if it is "well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." Id. and 416.927(d)(2) (1995).

Plaintiff's claims on this point are without merit because the ALJ's decision was based on a combination of factors including lack of medical evidence to support the severity of claimant's complaints, the findings of his treating physicians, and the reports of consultative examiners and the state agency non-examining physician. The ALJ could consider these consultative reports as "other medical evidence which is entitled to some weight." 20 C.F.R. § 404.1512 and 1527.

Moreover, the ALJ could find, based solely on the opinions of claimant's treating physicians, that there was substantial evidence that his claims regarding his limitations were not credible to the extent alleged. First, the numerous reports regarding claimant's back and joint problems by his treating physicians, Dr. Cheng and Dr. Karasick, never characterize the condition as more than mild. Dr. Cheng's conservative approach to treatment, for example, recommending home exercise, is further evidence of this. Therefore, the ALJ could properly find based on the opinions of plaintiff's treating physicians that Mr. Hagy's claim that he could not perform substantial work because of severe pain was not credible.

In his opinion, the ALJ did not specifically address the opinions given at one point by Dr. Cheng and Dr. Spinosi on forms for the Borough of Stratford that claimant could not do any work for an estimated two month period. (R. 140 & 164.) However, as noted earlier, these conclusions were not supported by objective medical evidence, and as such, are not entitled to as much weight. Additionally, they applied to a discrete period of time which was too short to qualify claimant for a period of disability.

In any event, while a diagnosis of a treating physician is considered as to whether a claimant is "disabled," the ALJ has the final responsibility to determine claimant's residual functional capacity to perform past relevant work in light of all the available evidence. 20 C.R.F. § 404.1527(E)(2); see also Alexander v. Shalala, 927 F.Supp 785, 792 (D.N.J. 1995), aff'd, 85 F.3d 611 (3d Cir. 1996)(finding that a statement by a medical source that an individual is "disabled" is not dispositive). In this case, the opinions of consultative physician, Dr. Montiel, finding claimant had no significant limitations, the opinions of non-examining physicians, finding based on the medical evidence that claimant could do medium work, the claimant's own testimony regarding his other normal activities and his decisions not to take pain medication, and the great weight of the opinions of his treating physicians collectively indicate that claimant was not experiencing the degree of physical limitation he alleged. Therefore, this court finds that the ALJ was within his discretion in his analysis of the medical evidence and that substantial evidence supports the determination that claimant retained the capacity to perform medium work.

D. Whether the ALJ's finding that claimant's subjective complaints of pain were not credible to the extent alleged was supported by substantial evidence.

Plaintiff also claims that the ALJ did not give adequate weight to claimant's subjective complaints. However, while the ALJ is required to give serious consideration to the claimant's subjective complaints, even those not fully confirmed by the objective medical evidence, Welch v. Heckler, 808 F.2d 264, 270 (3d Cir. 1986), s/he is not bound to accept unquestioningly the credibility of such subjective evidence. Marcus v. Califano,615 F.2d 23, 27 (2d Cir. 1979).

Furthermore, subjective complaints do not in themselves provide substantial evidence of disability. Green v. Schweiker, 749 F.2d 1066, 1070 (3d Cir. 1984). They must be accompanied by medical signs and laboratory findings which show that the claimant has a medical impairment which could reasonably be expected to produce the symptoms alleged. See Bittel v. Richardson, 441 F.2d 1193, 1195 (3d Cir. 1971).

Finally, it is within the ALJ's discretion "to evaluate the credibility of a claimant and to arrive at an independent judgment in light of medical findings and other evidence regarding the true extent of the pain alleged by the claimant." Brown v. Schweiker, 562 F. Supp. 284, 287 (E.D. Pa. 1983) (quoting Bolton v. Secretary of HHS, 504 F. Supp. 288 (E.D.N.Y. 1980). While subjective symptoms of pain can be validated if observed and treated over time by a physician, Dorf v. Bowen, 794 F.2d 896 (3d Cir. 1986), there must still be objective medical evidence of some condition that could reasonably produce the symptoms. Green 749 F.2d 1006 at 1071.

The ALJ found that objective medical evidence did not substantiate claimant's description of symptoms caused by his orthopedic conditions to the extent claimed. When a claimant's subjective complaints of symptoms indicate a greater severity or impairment than the objective medical evidence supports, the ALJ can give weight to factors such as physician's reports and claimant's daily activities. See 20 C.F.R. § 404.1529 (c)(3) (1995).

In his opinion, the ALJ "gave careful consideration to the claimant's allegations of pain." (R. 18.) However, the ALJ found that in light of the facts that claimant was no longer undergoing treatment, was not taking his prescribed medication, and engaged in "an extensive range of daily activities", claimant's complaints of pain were not credible to the extent alleged. Given the prohibitively high cost of even the simplest medical treatment, claimant's discontinuing treatment due to a lack of medical coverage should not work against him. However, the fact that claimant failed to take medications prescribed for pain is a valid consideration, see Welch v. Heckler, 808 F.2d 264, 270 (3d Cir. 1986), especially considering that he did not stop taking them due to lack of financial means (R. 46), despite the fact that he may have been self medicating with alcohol as plaintiff asserts. Furthermore, claimant testified that he could cut the grass for fifteen minutes at a time, do some cooking and laundry, help with grocery shopping, drive once a week, attend movies, work with model trains, go to the movies, dress and bathe himself, and lift fifty pounds. (R. 51- 58.) The ALJ was entitled to find that these activities were inconsistent with claimant's reports of the extent of his limitations.

Additionally, the ALJ noted that the reports given by consultative physician, Dr. Montiel, and also treating physician, Dr. Cheng, indicated only mild degenerative joint disease and made no recommendations that claimant should limit his activity. Neither did these reports contain anything which contradicted a capacity to do medium work as found by an independent physician who reviewed claimant's medical records at the request of the Social Security Administration. (R. 16-17.) Specifically, this physician found that claimant's condition did not preclude him from standing, sitting, or walking for six hours in an eight hour day, lifting 50 pounds occasionally, and lifting 25 pounds frequently. (R. 17.) The ALJ determined that this report was also inconsistent with claimant's allegations of pain and that whatever symptoms claimant experienced were not of such frequency or severity such that they would preclude him from engaging in medium work, including his past relevant work as a surveyor. (R. 18.)

Finally, it should be noted that deference is necessarily given to the decisions of the ALJ regarding credibility generally. In its review, then, the court will not substitute its own opinion of the credibility of a claimant's allegations for that of the ALJ because the ALJ has the opportunity to observe the plaintiff first hand. See Wier v. Heckler, 734 F.2d 955, 962 (3d Cir. 1984)(recognizing that great deference is given to the ALJ's determination of credibility). Accordingly, under this deferential standard, this court finds that there is substantial evidence to support the ALJ's finding that claimant's subjective complaints of pain were not credible to the extent alleged.

IV. Conclusion

In conclusion, this court finds that there was substantial evidence to support the ALJ's conclusion that the neurological testing requested by claimant was not required by the record. Furthermore, the ALJ properly considered the medical evidence and was within his discretion in finding that the claimant's allegations as to the extent of his pain was not credible in light of the record as a whole. Finally, substantial evidence supports the ALJ's finding that claimant retained the residual functional capacity to perform his past relevant work as a surveyor. Therefore, the judgment of the commissioner the claimant is "not disabled" within the meaning of the Act and was not entitled at any time to a period of Social Security Disability Insurance Benefits is affirmed.

The accompanying order is entered.

JEROME B. SIMANDLE U.S. District Judge

ORDER

This matter having come before the court upon plaintiff Douglas Hagy's application to review the final decision of the Commissioner of the Social Security Administration denying plaintiff's application for a period of disability and disability insurance benefits under Title II of the Social Security Act; and this court having considered the entire record and all submissions on behalf of the parties; and for the reasons stated in the Opinion of today's date; and for good cause shown;

It is this day of July, 1999, hereby ORDERED that the plaintiff's appeal be, and hereby is, DENIED and the final decision of the Commissioner be, and hereby is, AFFIRMED.

JEROME B. SIMANDLE U.S. District Judge

19990707

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