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GONZALEZ v. SCHWEIKER

June 8, 1982

Angela GONZALEZ, Plaintiff,
v.
Richard S. SCHWEIKER, Secretary of Department of Health and Human Services, Defendant



The opinion of the court was delivered by: NEAHER

MEMORANDUM OF DECISION AND ORDER

Plaintiff brought this action under 42 U.S.C. § 405(g) for judicial review of a final decision of the defendant Secretary of Health and Human Services ("Secretary"), which denied her application for a period of disability and Social Security disability insurance benefits. Based upon the pleadings, the administrative record and the Secretary's memorandum of law, each party seeks judgment. For the reasons stated below, the Court concludes that the Secretary's determination is supported by substantial evidence and should be affirmed.

 This case has followed an unusual course. Plaintiff, now 66 years of age, has already been awarded Supplemental Security Income (SSI) based on disability as of October 1978 in addition to Social Security benefits. Tr. 197, 369. *fn1" The only issue remaining is whether by reason of claimed prior illness, she was entitled to Social Security disability insurance benefits or SSI for any period before October 1978.

 Plaintiff came from Cuba to the United States in 1962. Tr. 264. She was then 47 years old, had an eighth grade education and is single. She is unable to communicate in English but reads and writes Spanish well. In Cuba she had worked for 20 years doing saleswork in a store. Tr. 214. After her arrival here she worked primarily as a sewing machine operator, wig stylist, and garment embroiderer until 1972-1973 when her earnings decreased substantially. Tr. 271. Her explanation was that she became ill on the job, could not complete the required amount of work and was laid off about July 1973. Tr. 176-77. She did not return to work thereafter. Id.

 On February 5, 1976, plaintiff filed separate applications for disability insurance benefits and supplemental security income declaring that she had been disabled since August 1973 because of "sciatic pain, anxiety." Tr. 243, 264. *fn2" Those applications were denied initially and on reconsideration, following which plaintiff requested a de novo hearing. After such a hearing on July 12, 1977, the administrative law judge (ALJ) found that plaintiff was not under a disability. That determination was adopted by the Secretary after the Appeals Council upheld the ALJ's findings. Tr. 324-31, 164-65.

 Subsequent to the Secretary's determination, plaintiff filed another application for disability insurance benefits and supplemental security income on October 26, 1978. Tr. 369. With that application, she submitted additional evidence which had not been considered. Previously this action had been filed; however, pursuant to stipulation of the parties, the claim was remanded to the Secretary for reconsideration in light of the additional evidence. The Appeals Council thereupon vacated its denial of plaintiff's request for review and remanded the case to an ALJ for further proceedings.

 At a supplemental hearing held on July 26, 1979 and May 21, 1980 (Tr. 166-232), a different ALJ considered the case de novo and found that the evidence did not establish impairments of sufficient severity and duration to constitute a disability prior to the expiration of plaintiff's insured period in March 1978. Tr. 143-48. The Appeals Council in affirming that decision on April 28, 1981, noted that its effect was to deny plaintiff a period of disability and disability benefits under her original application of February 11, 1976, and therefore render her "not eligible for supplemental security income at any time prior to October 1978." Tr. 133. Thus that decision does not affect the SSI and other benefits plaintiff has apparently been receiving since October 1978.

 "It is well established that the burden of proving disability is on the claimant, 42 U.S.C. § 423(d)(5) ...." Aubeuf v. Schweiker, 649 F.2d 107, 111 (2d Cir. 1981). See also Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980), and Gold v. Secretary of H.E.W., 463 F.2d 38, 41 (2d Cir. 1972). Furthermore, that burden includes the requirement that the claimant's disability existed prior to the expiration of her insured status. De Nafo v. Finch, 436 F.2d 737 (3d Cir. 1971); Henry v. Gardner, 381 F.2d 191 (6th Cir. 1967), cert. denied, 389 U.S. 993, 88 S. Ct. 492, 19 L. Ed. 2d 487 (1967), rehearing denied, 389 U.S. 1060, 88 S. Ct. 797, 19 L. Ed. 2d 864 (1968); Toledo v. Secretary of Health, Education and Welfare, 308 F. Supp. 192 (D.P.R.1970), aff'd, 435 F.2d 1297 (1st Cir. 1971). In this case there is no question that plaintiff's insured status expired on March 31, 1978. Tr. 213. Hence it was essential that medical evidence be available to establish the existence of a qualifying disability prior to that date. Plaintiff cannot sustain her burden of proof solely through her own statements that she was disabled during the insured period and was too ill to work. Ramirez v. Secretary of Health, Education and Welfare, 528 F.2d 902 (1st Cir. 1976); Peterson v. Gardner, 391 F.2d 208 (2d Cir. 1968).

 Plaintiff was represented by an attorney at the second (supplemental) hearing at which it was agreed that all the medical evidence offered at the 1977 hearing could also be considered as well as any subsequent evidence the attorney wished to present. Tr. 171. Plaintiff testified fully regarding her education in Cuba and her work experience there and here, her illnesses, doctors, medications and activities after she ceased working, including a trip to Miami in March 1980 to see Dr. Jorge Picaza, who had performed lumbar disc surgery on her in Cuba some 21 years before. Tr. 172-86, 373-74. *fn3"

 In sum, from December 1974 to March 1980 plaintiff has been treated or examined by at least ten doctors. In her own statement given to a Social Security Administration (SSA) interviewer, plaintiff claimed she had visited Dr. Goltran J. Perez once a month from December 1974 to October 1976 "for checkup on her condition and to have medication prescribed." This medication was to "relieve pain of sciatica condition and to relieve nervousness." Tr. 285. In handwritten notes dated February 3, 1976, and May 5, 1980, Dr. Perez confirmed that plaintiff had been under his care since 1974 and was unable to work "due to her chronic back ache" from which she was "suffering intractable sciatic pain." Tr. 294, 375-76. On February 2, 1978, however, his diagnosis of her back problem was "mild arthritis" and "mild osteoporosis of the spine" from which she experiences "pain and tenderness" and "restriction of capacity to walk, sit or stand." Tr. 352.

 On April 6, 1976, plaintiff was examined at the request of the State Bureau of Disability Determinations by Dr. Kenneth E. Seslowe, a board certified specialist in orthopedic surgery. At that time plaintiff told Dr. Seslowe she could walk 5 to 6 blocks but thereafter had pain. She also told him that she had low back pain radiating down the right leg for over 20 years. Examination of her back revealed no spasm but 10 degrees of limitation of flexion and of lateral bend to the right, with some decreased sensation over the lateral thigh on the right. X-ray examination revealed prior surgery at the L-4, L-5 level but no evidence of fracture or dislocation, and disc spaces were well maintained. Dr. Seslowe concluded there was evidence of "a right sided sciatica, mild" but no need for surgery. In his opinion plaintiff could walk for 10 blocks, lift and carry 10 pounds, sit for two hours at a time, and use public transportation. Tr. 296-97. On a requested re-examination on September 16, 1976, Dr. Seslowe adhered to his original view of plaintiff's ability to walk, lift and sit, adding that arthritic changes noted were "minor" and that fine and gross motions of the upper extremities were not affected. Tr. 298.

 On January 5, 1977, plaintiff was examined by Dr. Herman H. Pelz, a specialist in internal medicine, again at the request of the Bureau of Disability Determinations. Tr. 303. Dr. Pelz noted plaintiff's statements that her back pain was relieved by analgesics; that she shops and cleans her home, can walk up to 10 blocks, climb stairs slowly, and has no limitation as to sitting or finger movements. Tr. 304. Dr. Pelz found her to be

 
"a well-developed, well-nourished white female appearing younger than her stated age of 61 and in no acute or chronic distress." Tr. 304.

 Dr. Pelz's examination revealed findings similar to those of Dr. Seslowe, namely, normal chest film, no heart problems, and "intermittent sciatica and back ...


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