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DE PAULA v. SECRETARY OF HHS

March 19, 1984

CARMEN DE PAULA, Plaintiff, against SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.


The opinion of the court was delivered by: POLLACK

MEMORANDUM AND ORDER

MILTON POLLACK, SENIOR UNITED STATES DISTRICT JUDGE

 By this action, plaintiff seeks judicial review of a decision of the Secretary of Health and Human Services, defendant herein, denying the plaintiff's applications for federal disability insurance benefits and Supplemental Security Income (SSI) based upon diability.This action is brought pursuant to 42 U.S.C. §§ 405(g) & 1383(c)(3). The parties have brought cross-motions for judgment on the pleadings under Fed.R.Civ.P. 12(c), adjudication of which is effected by entry of this order.

 Plaintiff is a forty-three year old woman, with a history of hypertension, osteoarthritis of the right knee, low back pain and pain in her neck and right shoulder. Plaintiff was employed as a sewing machine operator until July 16, 1979, when she resigned her position as a result of severe pain and pregnancy. On February 22, 1982, plaintiff was hospitalized, complaining of severe headaches and severe low back pain. She was released a week later. On March 5, 1982, plaintiff applied for disability insurance benefits, claiming diability as of February 22, 1982. Plaintiff also filed an application for SSI benefits, based upon her alleged disability, on March 5, 1982, claiming disability as of February 22, 1982.

 Plaintiff's applications for disability insurance benefits and SSI benefits based upon alleged disability were denied initially and upon reconsideration. Plaintiff requested a hearing to review both applications. That hearing was held on October 27, 1982 before Administrative Law Judge (ALJ) Michael P. Friedman. On December 1, 1982, the ALJ found that the plaintiff is not disabled, and denied her applications for benefits. That decision became the final decision on the Secretary upon affirmation by the Social Security Appeals Council in March, 1983. It is of that decision that plaintiff seeks judicial review.

 Both 42 U.S.C. § 423(d)(1)(A), relating to diability insurance benefits, and 42 U.S.C. § 1382c(a)(3)(A), relating to SSI payments based on disability, define disability as the inability

 to engage in any substantial gainful activity by reason of any medically determinable physicial 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 twelve months . . .

 An individual is only disabled, however, if

 his physical or mental impairment or impairments 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 . . .

 42 U.S.C. §§ 423(d)(2)(A) & 1382c(a)(3)(B).

 Regulations adopted by the Secretary of Health and Human Services mandate the conduct of a five-part evaluation process for determining whether an individual's condition meets this definition of disabilty:

 First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Secretary next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education and work experience; the Secretary presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant could perform . . . The claimant bears the burden of proof as to the first four steps, while the Secretary must prove the final one.

 Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).

 In his determination of plainitff's applications for disability payments, the ALJ ...


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