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October 28, 1983


The opinion of the court was delivered by: CONNER


The Social Security Administration denied Delgado's application on March 10, 1981, indicating that because his condition was not expected to be severe for a continuous period of at least twelve months, he failed to meet eligibility requirements. Delgado sought reconsideration of this determination, and on July 23, 1981 his application was again denied. He then requested a hearing, which was held on October 6, 1981 before Administrative Law Judge Robert J. Lazarus ("the ALJ"). The ALJ reviewed the case de novo and issued a decision dated February 25, 1982, in which he found that Delgado was not "disabled" within the meaning of the Act. The Appeals Council refused to review the ALJ's decision, making it the final determination of the Secretary.

 At the time of the hearing Delgado was 36 years old. (Tr. at 22). *fn1" He testified that he was born in Puerto Rico and completed the fourth grade there, but could not read or write. (Tr. at 22, 25-26). He was employed as a construction worker before moving from Puerto Rico to New York in 1971, but in the period after his arrival in New York, he did not work. (Tr. at 23-24). Delgado attributed his lack of employment to drug involvement, dizzy spells and a nervous condition. (Tr. at 27). Although he continued to complain of the latter two conditions at the time of the hearing, he said that he had not used drugs for approximately two years, and had abstained from alcohol for two or three weeks. (Tr. at 22). He attended a detoxification clinic at Lincoln Hospital three times a week. (Tr. at 31).

 Delgado testified that in addition to his visits to the detoxification clinic, he attended physical therapy sessions to learn how to use his prosthetic leg. This therapy included walking, lifting, and doing various other exercises. (Tr. at 29). He explained to the ALJ that he had been fitted with the prosthesis approximately two months earlier and tried to wear it every day, but that it caused him pain and he was often forced to remove it. (Tr. at 30). Delgado indicated that he had difficulty bending the leg, and that he had to get accustomed to it. (Tr. at 33). He also experienced pain when he was not wearing the prosthesis, and as a result, he was often unable to sleep through the night. (Tr. at 32-33). He was not taking any medication for the pain. (Tr. at 31).

 Delgado stated that he lived alone in a three-room apartment, but that a woman friend did his cooking, shopping, laundry and cleaning. (Tr. at 30). Public assistance was his only source of income. (Tr. at 24). His daily activities included watching television and sitting outside his apartment, talking to people who passed by.He generally went to bed at seven or eight o'clock in the evening. (Tr. at 32-33). Delgado explained that he used crutches to walk and was able to travel by bus; he was unable to use the subway, however, because he could not negotiate the stairs.

 Documentary evidence in the form of Delgado's disability report (Tr. at 49-56) and medical records (Tr. 63-96) was also submitted for the ALJ's consideration. Notes dated December 19, 1980 indicate that Delgado had begun rehabilitative therapy, and his stump appeared to be "non-tender to deep pressure." (Tr. at 79). On January 2, 1981, the physical therapist noted that plaintiff felt "a bit stronger" in his lower right extremity, and that he was experiencing no acute distress. The scar was healing and the stump continued to appear non-tender to deep pressure. Delgado was provided with "gait instruction" and a home exercise program. (Tr. at 83). On February 3, 1981, Delgado was measured for an above-the-knee prosthesis, and on March 3, 1981, he returned for a fitting of the device. The goal stated by his physician on that date was to "improve ambulation status," and the treatment plan notation refers to ambulation training and use of "one crutch or cane if feasible." (Tr. at 88).

 According to the medical records, Delgado had some difficulty with transportation to the hospital and therefore failed to attend therapy sessions regularly. He did appear on April 22, 1981, however, and agreed to continue ambulation training. He returned on May 20, 1981, at which time the doctor noted that because his attendance at therapy sessions continued to be sporadic, he was not yet fully trained in use of the prosthetic leg. Plaintiff indicated at that time that he wished to continue the training. His stump was "in good condition" and his ambulation with crutches was "very functional." (Tr. at 94).

 Delgado's last visit to the clinic prior to the hearing was on October 3, 1981. However, the record does not contain any indication of the progress he had made at that juncture.


 A claimant is entitled to disability benefits under the Social Security program if he is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected... to last for a continuous period of not less than twelve months." 42 U.S.C.§ 423 (d)(1). The burden of proving disability is on the claimant. See, e.g., Parker v. Harris, 626 F.2d 225 (2d Cir. 1980). Once the claimant has established a prima facie case by showing that his impairment prevents his return to his prior employment, the burden shifts to the Secretary who must show that there exists alternative substantial gainful work in the economy which the claimant could perform, considering not only his physical capacity but also his age, education, experience and training. Parker v. Harris, supra, 626 F.2d at 231.

 The regulations set forth a five-step sequence to be utilized in evaluating a disability benefit application. First, the trier of fact should consider the claimant's current work activity. If the claimant is currently engaged in substantial gainful activity, he will not be found to be disabled. Second, the trier of fact should determine whether the claimant has a "severe impairment" which has significantly limited or will significantly limit his capacity to perform basic work activities for a period of twelve months. Basic work activities are defined as including physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, and handling.If there is no "severe impairment," no further consideration is necessary. If such an impairment does exist, however, the trier of fact should then decide whether the claimant has an impairment as described in Appendix I of the regulations. If the condition qualifies under these guidelines, the individual must be determined to be disabled without consideration of vocational factors. The fourth inquiry is whether the claimant's impairments prevent him from performing his past work. Finally, if the claimant cannot perform his past work, the trier of fact should consider whether the claimant's remaining physical and mental abilities are consistent with the demands of other jobs and whether he has the vocational capabilities to make the adjustment to such new type of employment. 20 C.F.R. § 404.1503; see Berry v. Schweiker, 675 F.2d 464 (2d Cir. 1982). As noted above, the claimant bears the burden of proof as to the first four steps while the Secretary must prove the final one.

 In reaching a conclusion on these issues, the case law indicates that the trier of fact should consider (1) objective medical facts, diagnoses, or medical opinions, (2) subjective testimony by the claimant as to pain or disability, and (3) background data such as the claimant's age, education, nd previous work experience. Parker, supra; Bastien v. Califano, 572 F.2d 908 (2d Cir. 1978). Where, as here, the claimed disability results in part from severe pain, the application for benefits should be evaluated under "the standard that a medical impairment which results in severe disabling pain may give rise to a grant of disability even if 'objective' clinical findings do not provide proof of an affliction ordinarily causing such pain." Aubeuf, 649 F.2d 107, 114 (2d Cir. 1981), quoting Marcus v. Califano, 615 F.2d 23, 28 (2d Cir. 1979). However, the Secretary is not obliged to accept as true a claimant's self-serving, subjective statements pertaining to his claim. See Aubeuf v. Schweiker, supra, 649 F.2d at 114; Marcus v. Califano, supra, 615 F.2d at 27. Subjective symptoms must be evaluated with due consideration of credibility, motivation and medical evidence of impairment.

 The standard for judicial review of disability determinations by the Secretary is established by § 205(g) of the Act. That section provides that the Secretary's factual findings shall be conclusive if supported by substantial evidence, which has been defined as "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, 59 S. Ct. 206, 83 L. Ed. 126 (1938).

 The substantial evidence test applies not only to findings of basic evidentiary facts, but also to inferences and conclusions drawn from such facts. Rodriguez v. Califano, 431 F. Supp. 421, 423 (S.D.N.Y. 1977); Beane v. Richardson, 457 F.2d 758, 759 (9th Cir.), cert. denied, 409 U.S. 859, 34 L. Ed. 2d 105, 93 S. Ct. 144 (1972). In short, the reviewing court is not to decide the case de novo, and the Secretary's determination will be conclusive even in instances where the court's independent analysis of the evidence may differ from that of the Secretary. Reading v. Mathews, 542 F.2d 993, 997 (7th Cir. 1976). A reviewing court is not required to accept the Secretary's determination, however, if the ...

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