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RASCOE v. CALIFANO

December 6, 1978

VIRGINIA M. RASCOE, Plaintiff,
v.
JOSEPH A. CALIFANO, Jr., SECRETARY OF HEALTH, EDUCATION and WELFARE, Defendant.



The opinion of the court was delivered by: MOTLEY

Memorandum Opinion and Order

Virginia M. Rascoe (plaintiff) brings this action to challenge the decision of the Secretary of Health, Education and Welfare (HEW) which denied her application for Supplemental Security Income. Plaintiff brings this action pro se, and did not have any legal representation at any point in her administrative proceedings.

 This court has jurisdiction of the action under 42 U.S.C. § 405(g) which provides, in pertinent part, that this Court:

 
". . . shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the case for a rehearing."

 Defendant has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). After examining the record in this case and reviewing the applicable law, this court finds that the decision of the Secretary was supported by substantial evidence, and that the Administrative Law Judge (ALJ) adequately took into account the facts favorable to plaintiff's claim, as is his duty when plaintiff is not represented by counsel. Gold v. Secretary of HEW, 463 F.2d 38, 43 (2nd Cir. 1972). Therefore, defendant's motion for judgment on the pleadings is granted.

 Prior Proceedings

 Plaintiff filed an application for disability insurance benefits and Supplemental Security Income benefits on June 30, 1975, alleging that she became unable to work on August 31, 1974. Both applications were denied initially on the ground that plaintiff was not under a disability. Upon reconsideration, the Bureau of Disability Insurance of the Social Security Administration reached the same result on the basis of an independent review by a physician and a disability examiner. Plaintiff requested a hearing to review that decision and on July 8, 1976, a hearing was held before an ALJ, who considered the case de novo. Plaintiff appeared and testified at the hearing, as did a vocational expert. The ALJ found that the plaintiff was not under a disability, and his decision, dated July 22, 1976, became the final decision of the Secretary when the Appeals Council approved the decision on December 7, 1976.

 Questions Presented

 For entitlement to disability benefits under 42 U.S.C. §§ 416(i) and 423, it is necessary that the claimant meet a special earnings requirement. It is not disputed that plaintiff has met this requirement, (Tr. 8) *fn1" , but it is disputed whether plaintiff was under a disability on the date of or prior to the decision of the ALJ. Section 423(d)(1) of the Social Security Act defines "disability" 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." Section 423(d)(2)(A) further provides that "an individual . . . shall be determined to be under a disability only if his physical or mental impairment . . . 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." Section 423(d)(3) further states "For purposes of this subsection, a "physical or mental impairment' is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques."

 In light of the above provisions, the specific questions before the ALJ were whether the plaintiff was under a "disability" as defined in Sections 423(d) (1) and 1614(a)(3) of the Act; and if so, when such "disability" commenced and the duration thereof.

 Judicial review of the Secretary's decision is limited to a determination of whether the decision is supported by substantial evidence. 42 U.S.C. § 405(g). Richardson v. Perales, 402 U.S. 389, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971). The Secretary's findings of fact, as well as the inferences and conclusions to be drawn from those findings, are conclusive. It is not for this court to pass upon the facts before the Secretary, but only to determine whether the hearing provided the plaintiff was full and fair, and whether the conclusion of the Secretary was based on substantial evidence looking at the record as a whole. Franklin v. Secretary of HEW, 393 F.2d 640 (2nd Cir. 1968).

 Facts

 Plaintiff is a single, 60 year old woman, born in North Carolina on October 25, 1918. She acquired a tenth-grade education and some vocational training in the use of hotel business machines, although she has never used this skill. She has worked as a laundress, a domestic laborer, and packer of pickles. For some twelve years before the alleged onset of disability, plaintiff was employed marking and sorting laundry. She also operated a heat-sealing machine for some seven years.

 In 1967 or 1968, plaintiff was mugged, during the course of which her arm was twisted, and she was knocked on the ground. She states that she has had intermittent back pain since that time. This condition improved but she reinjured her back in 1969 when she suffered whiplash injury in an auto accident. Plaintiff continued to work, although on ...


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