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MCANDREW v. HECKLER

April 20, 1983

JOSEPH McANDREW, Plaintiff,
v.
MARGARET M. HECKLER, Secretary of Health and Human Services, Defendant



The opinion of the court was delivered by: WARD

WARD, J.

 This is an action under section 205(g) of the Social Security Act (the "Act") as amended, 42 U.S.C. § 405(g), for judicial review of a final decision by the Secretary of Health and Human Services (the "Secretary") *fn1" denying plaintiff's application for disability insurance benefits. The Secretary held that plaintiff failed to demonstrate that he suffered from a "disability" within the meaning of the Act. Both plaintiff and defendant move for judgment on the pleadings pursuant to Rule 12(c), Fed. R. Civ. P. For the reasons stated hereinafter, plaintiff's motion is granted in part, defendant's motion is denied, and the case is remanded to the Secretary.

 Background

 Plaintiff, currently forty-two years of age, has a college education and has nearly completed the course work necessary for a master's degree. From 1965 to 1979 he was employed as a police officer by the City of New York. His impairments arise from injuries sustained in a violent assault by a prisoner in a jail cell on April 26, 1979. Plaintiff's claim is based on injuries to his right arm, diagnosed as ulnar and radial nerve damage, and severe reactive depression.

 Plaintiff first applied for disability insurance benefits on July 24, 1980. After his application was denied initially and on reconsideration, he filed a timely request for an administrative hearing, which was held on July 1, 1981. The administrative law judge, Gerald Sheindlin (the "ALJ"), found that plaintiff was not disabled, and on March 30, 1982 that finding became the final decision of the Secretary when it was adopted by the Appeals Council.

 Disussion

 The legal principles that govern the Court's decision on the instant motions are well settled. "Disability" is defined in the Act 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. § 423(d)(1)(A). The mere presence of an impairment is not disabling within the meaning of the Act. Rather, a person may be determined to be under a disability only if his or her impairment is of such severity that the claimant is not only unable to do his or her previous work, but cannot engage in any kind of substantial gainful work that exists in the national economy. 42 U.S.C. § 423(d)(2)(A).

 The initial burden of proving disability is on the claimant. 42 U.S.C. § 423(d)(5); see Schauer v. Schweiker, 675 F.2d 55 (2d Cir. 1982); Carter v. Schweiker, 649 F.2d 937, 940 (2d Cir. 1981); Gold v. Secretary of HEW, 463 F.2d 38, 41 (2d Cir. 1972). The claimant satisfies this burden by making out a prima facie case, that is, by showing that his or her impairment prevents return to his or her prior employment. Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980); Bastien v. Califano, 572 F.2d 908, 912-13 (2d Cir. 1978). The burden then shifts to the Secretary, who must produce evidence to show the existence of alternative substantial gainful work that exists in the national economy that the claimant could perform. Parker v. Harris, supra, 626 F.2d at 231; Bastien v. Califano, supra, 572 F.2d at 912-13.

 In reaching a conclusion as to disability, both objective and subjective factors are to be considered. These include objective medical facts, diagnoses or medical opinions based on such facts, subjective evidence of pain or disability testified to by the claimant or other witnesses, and the claimant's educational background, age, and work experience. Rivera v. Harris, 623 F.2d 212, 216 (2d Cir. 1980); Bastien v. Califano, supra, 572 F.2d at 912; Gold v. Secretary of HEW, supra, 463 F.2d at 41 n.2. These factors need not be given equal weight. The expert opinion of the claimant's treating physician is entitled to particular weight. Eiden v. Secretary of HEW, 616 F.2d 63, 64 (2d Cir. 1980); Alvarado v. Califano, 605 F.2d 34, 35 (2d Cir. 1979).

 The Secretary has the duty of making the determination of disability under the principles set out above. It is not the function of this Court, which sits in the present context as a reviewing court, to determine de novo whether the claimant is disabled. Assuming the Secretary has applied proper legal principles, judicial review is limited to an assessment of whether the findings of fact are supported by substantial evidence. If they are so supported, they are conclusive. 42 U.S.C. § 405(g). See Rivera v. Harris, supra, 623 F.2d at 216; Bastien v. Califano, supra, 572 F.2d at 912; Gold v. Secretary of HEW, supra, 463 F.2d at 41. "Substantial evidence" means "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938)). See generally Parker v. Harris, supra, 626 F.2d at 230-32.

 Applying these principles to the instant case, the Court concludes that not all aspects of the decision of the Secretary are supported by substantial evidence, and that the case must be remanded. Two of the findings by the ALJ that are now challenged by plaintiff are supported by substantial evidence, and are affirmed herein. Those are: 1) that plaintiff's physical impairment is not, by itself, disabling, and 2) that plaintiff's pain is not sufficiently severe to be disabling. On the other hand, two of the ALJ's findings are not supported by substantial evidence in the record, and therefore must be reversed. Those are: 1) that the claimant has the residual functional capacity to perform "sedentary work," as defined by 20 C.F.R. § 404.1567(a), and 2) that plaintiff's psychiatric condition would "not significantly affect" his residual functional capacity to perform sedentary work. Taken together, these conclusions persuade the Court that no single rule found in the Secretary's Medical-Vocational Guidelines, 20 C.F.R. Part 404(P), App. 2, is applicable to plaintiff. Therefore, his case cannot be disposed of through mechanical application of those guidelines, but must be evaluated on an individualized basis.

 In his decision of December 12, 1981, the ALJ found that plaintiff is unable to perform his past relevant work as a police officer, due to the injuries to his right arm. That conclusion is amply supported by the evidence, and is not challenged by either party before the Court. As noted by both this Court and the ALJ, that finding shifts the burden of proof to the Secretary, who must show the existence of substantial gainful work that plaintiff can perform. See supra slip op. at 2.

 The first half of the ALJ's inquiry into whether plaintiff can perform alternative work consisted of an evaluation of plaintiff's physical impairment. The Court accepts as supported by substantial evidence the ALJ's finding that plaintiff's physical impairment is not, by itself, disabling. Plaintiff correctly points out that the record is replete with evidence indicating that his use of his right arm and hand is limited. Nonetheless, even if the evidence indicated, as it does not, that plaintiff's right arm were totally useless, a finding of disability would not be required. Both the case law *fn2" and the Secretary's regulations *fn3" indicate that the loss of use of one arm or hand is not, by itself, regarded as a disability within the meaning of the Act. *fn4" Such a conclusion is all the more clear where, as here, the claimant is both highly educated and, as defined by the Secretary, is a "younger person." 20 C.F.R. § 404.1563(b); see 20 C.F.R. Part 404(P), App. 2, § 201.00(h).

 Plaintiff makes the additional argument that he suffers from severe and disabling pain in his elbow, arm, and hand. It is well settled that subjective pain may serve as the basis for establishing disability. Aubeuf v. Schweiker, 649 F.2d 107, 112-13 (2d Cir. 1981); Marcus v. Califano, 615 F.2d 23, 27-28 (2d Cir. 1979); see also Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir. 1983). In the instant case, however, the ALJ concluded that McAndrew's pain was not sufficiently severe to be disabling. That conclusion is supported by substantial evidence in the record. The ALJ's opinion of December 12, 1981 indicates that he considered plaintiff's own testimony as to his pain, as well as the testimony of plaintiff's wife and doctors. The ALJ found that plaintiff's own testimony that his pain was disabling was not credible or consistent. This finding was in part based on the observations that plaintiff has widely increased his range of activities since the months following his injury, that he has markedly reduced the amount and strength of medication he takes for pain, and that he is no longer undergoing regular treatment or therapy. While the medical reports in the record contain a number of references to plaintiff's pain, those reports are by no means unequivocal on the question of whether plaintiff's pain is disabling. In any event, it is not for this Court but for the Secretary to evaluate the evidence, consider the credibility of witnesses, and draw permissible inferences from the evidence. See Richardson v. Perales, supra, 402 U.S. at 399; ...


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