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ITALIANO v. SECRETARY OF HEALTH

July 21, 1978

Cynthia A. ITALIANO, Plaintiff,
v.
SECRETARY OF HEALTH, EDUCATION AND WELFARE, Defendant



The opinion of the court was delivered by: NEAHER

MEMORANDUM OF DECISION AND ORDER

This action to review a denial of Social Security disability insurance benefits to plaintiff was initially referred to a United States Magistrate to review the administrative record, hear the contentions of the parties and report to the Court his recommended disposition of their respective motions for judgment on the pleadings. That has been done and the matter is now before the Court on the Magistrate's recommendation that the defendant Secretary's motion for judgment on the pleadings dismissing the action be granted, and on the plaintiff's objections to such a disposition.

 After an independent searching review of the record, the Court agrees with and accepts the Magistrate's recommendation, and a copy of his report is incorporated as part of this decision. In light of plaintiff's objections, however, it seems desirable to amplify the Magistrate's discussion of the facts and medical evidence of record which support the Secretary's determination.

 In July 1976, when this second application for disability insurance benefits was heard by an administrative law judge, plaintiff was 36 years old and until 1972 had been employed for some 16 years as a billing typist. She is divorced and the mother of two children, one then 10 years of age and an infant of 5 months. She ceased employment in May 1972 after catching cold from working in an excessively air conditioned room. She later received a disability award from the Workmen's Compensation Board for a myositis of the neck, shoulders, back, hands and arms, which was held to constitute an accidental injury arising out of and in the course of employment. This disability was held to have terminated on March 22, 1973. Plaintiff has supported herself since by means of alimony, welfare payments received for a niece who resides with her, and help from her parents.

 In 1973 plaintiff had been under the care of Dr. Vincent J. Geraci, who diagnosed her condition as polyarthritic with myositis of shoulders, limitation of wrist motion and generalized arthritic pain, but which he felt was probably resolved as of his last examination on March 22, 1973. In her subsequent applications for Social Security benefits, plaintiff has consistently stressed the continuation of such pain as the basis for her claims. However, except for the finding of a chiropractor, Dr. Arnold E. Forster, who reported that his examination "showed restriction of spinal mobility," no medical doctor has found any objective basis for such claims. Indeed, on July 8, 1975, Dr. Geraci reported as follows:

 
"This patient has had subjective complaints of rheumatoid arthritis for several years. Physical examination does not reveal any marked deformities. Pain and motion limitation are mostly subjective. Objectively, there is very little in terms of positive findings. At present, she is pregnant. I have not taken any lab tests or x-rays but, as far as I know, results of such tests have not revealed any positive findings." (Record, p. 229)

 In this Circuit it has been held that "even pain unaccompanied by any objectively observable symptoms which is nevertheless real to the sufferer and so intense as to be disabling will support a claim for disability benefits." Ber v. Celebrezze, 332 F.2d 293, 299 (2 Cir. 1964). It has also been said that an administrative law judge must consider the severity of pain in the context of the individual before him, rather than a theoretical normal person or even the average claimant. Franklin v. Secretary of Health, Education and Welfare, 393 F.2d 640 (2 Cir. 1968).

 Nothing said in Ber or Franklin, supra, requires, however, that a claimant's assertions of continuing pain be accepted as conclusive on the issue of disability. If that were otherwise, such declarations would automatically establish entitlement to insurance benefits in every case. The credibility of a claimant's subjective complaints of pain clearly must be examined in relation to all of the other evidence of record in order to determine whether the "degree of pain (is) so severe and so continuous as to render " the claimant incapable of carrying on any occupation suitable to the claimant's age, education, skills and experience, and residual functional capacity.

 On the record here the complaints voiced by plaintiff could in no sense be regarded as evidence of continuing pain so severe and intractable as to disable her from pursuing substantially gainful activity, if she chose to do so. She has never taken any other medication but aspirin for her condition, and has increased her weight from 110 lbs. to 120 lbs. Although she testified on her current application that her niece did most of the housework, other evidence of record indicates that on an average day she takes her daughter to school, straightens up the house, does light housework and knits. She has been able to walk five or six blocks and do the shopping, although denying that she carries any packages. She also drives a car locally and from exhibits in the record it appears she has no difficulty in writing long letters in a firm hand and also in typing letters. It is also manifest that her arthritis bothers her most in damp weather and when she is subjected to air conditioning, a not uncommon experience for arthritis sufferers. The credibility of plaintiff's complaints in light of these activities was well within the province of the administrative law judge to determine. Deyo v. Weinberger, 406 F. Supp. 968, 974 (S.D.N.Y. 1975). The record provides no basis for reaching a different result.

 The defendant Secretary's determination is accordingly affirmed and his motion for judgment on the pleadings dismissing the complaint is granted.

 SO ORDERED.

 The Clerk of Court is directed to forward copies of this Memorandum of Decision and Order, together with the Report of the United States Magistrate, to the parties.

 A. SIMON CHREIN, Magistrate.

 This is an action brought under 42 U.S.C. § 405(g) to review a final determination of the Secretary of H.E.W. denying Mrs. Italiano's application for a period of disability and disability insurance benefits. Mrs. Italiano's application for disability benefits was filed on February 13, 1975 (184-187)*. A previous application for benefits based on the same grounds had been denied administratively on April 24, 1974 (182-183). Mrs. Italiano's claim for disability is based on a claim that she is afflicted with rheumatoid arthritis which resulted from an overexposure to air conditioning at a previous secretarial position. Her claim is that she is unable to freely move her fingers, wrists and her upper extremities and that she experiences pain and discomfort when sitting for prolonged periods of time due to a spinal dislocation and when subjected to air conditioning, and humidity (32, 35, 37). A hearing was held in connection with this matter before the Administrative Law Judge on July 6, 1976 (25-90) at which the plaintiff was represented by counsel. The Administrative Law Judge in a decision found that the claimant suffers from non specific arthritis causing pain and swelling in her joints but that she has not been prevented from engaging in substantial gainful activity for a period that has lasted or can be ...


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