The opinion of the court was delivered by: Simandle, District Judge:
HONORABLE JEROME B. SIMANDLE
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.
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.)
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 ...