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BROWN v. HECKLER

May 25, 1984

GORDON BROWN, Plaintiff, against MARGARET M. HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.


The opinion of the court was delivered by: SPRIZZO

OPINION AND ORDER

SPRIZZO, D.J.:

 Plaintiff, Gordon Brown, commenced this action pursuant to section 205(g) of the Social Security Act ("the Act"), as amended, 42 U.S.C. § 405(g) (Supp. V 1981), seeking review of a final determination of the Secretary of Health and Human Services ("the Secretary") denying in part plaintiff's application for disability insurance benefits.

 Plaintiff filed his application for benefits on February 6, 1981. The Secretary denied his claim both initially and upon reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge ("ALJ"). The ALJ heard the case de novo and found that plaintiff was disabled within the meaning of the Act as of April 23, 1981. *fn1" When the Appeals Council denied plaintiff's request for review, the ALJ's decision became the Secretary's final determination. Plaintiff commenced this action on September 10, 1982, appealing from the ALJ's determination that the onset date of disability was April 23, 1981.

 Both parties moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). The case was referred to Magistrate Kent Sinclair for his review and recommendation pursuant to 28 U.S.C. § 636(b) (1982). Magistrate Sinclair issued a report recommending that defendant's motion be granted and plaintiff's motion be denied. Plaintiff has submitted written objections to the Magistrate's report. This Court must therefore make a de novo determination of those aspects of the Magistrate's report to which objection has been made. 28 U.S.C. § 636(b)(1)(C).

 BACKGROUND

 Legal Standards

 Under the Act, a claimant is not entitled to disability benefits unless his health is so impaired that he is unable to perform either his previous job or any other substantial work that exists in the economy. 42 U.S.C. § 423(d)(2)(A) (1976); see Bluvband v. Heckler, No. 83-6238, slip op. at 2483-84 (2d Cir. March 23, 1984); Rivera v. Schweiker, 717 F.2d 719, 722 (2d Cir. 1983). *fn2"

 In evaluating disability claims, the Secretary employs a five step sequential analysis:

 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.

 Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam); see 20 C.F.R. § 404.1520, 416,920 (1983). *fn3"

 In determining whether a claimant is disabled, the Secretary must apply the factors identified by Congress in section 423(d)(2)(A) -- age, education, physical ability, and work experience. Campbell v. Heckler, 461 U.S 458, 103 S. Ct. 1952, 76 L. Ed. 2d 66 (1983); Ferraris v. Heckler, No. 83-6246, slip op. at 1858 (2d Cir. February 22, 1984). In assessing physical ability, or "residual work capacity," the Secretary must consider: (1) objective medical facts; (2) diagnoses and medical opinions based on those facts; and (3) subjective evidence of pain or disability testified to by the claimant or others. Ferraris v. Heckler, slip op. at 1859, Dumas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir. 1983); Carroll v. Secretary of Health and Human Services, 705 F.2d 638, 642 (2d Cir. 1983); Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980).

 On review, the Secretary's determination that a claimant is not disabled is conclusive if supported by substantial evidence. 42 U.S.C. § 405(g); Donato v. Secretary of Dept. of Health and Human Services, 721 F.2d 414, 418 (2d Cir. 1983); Rivera v. Schweiker, 717 F.2d at 723. Substantial evidence is "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 ...


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