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JANTZ v. HECKLER

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


August 28, 1985

ROBERT JANTZ, Plaintiff, against MARGARET M. HECKLER as Secretary of Health and Human Services, Defendant

The opinion of the court was delivered by: SPRIZZO

OPINION AND ORDER

SPRIZZO, D.J.:

 Plaintiff Robert Jantz brings this action pursuant to 42 U.S.C. § 405(g) for review of the decision of defendant Heckler, Secretary of Health and Human Services, denying plaintiff's application for disability insurance benefits. The parties have filed cross motions for judgment on the pleadings. Fed. R. Civ. P. 12(c). *fn1"

 The scope of judicial review in this type of action is quite limited, and does not allow the Court to decide the case de novo. See, e.g., Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per curiam); Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980); Rivera v. Harris, 623 F.2d 212, 216 (2d Cir. 1980). The only issue before the Court is whether the Secretary's decision is supported by substantial evidence. See 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971); Donato v. Secretary of Health and Human Services, 721 F.2d 414, 418 (2d Cir. 1983); Parker, supra, 626 F.2d at 231. Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." See Richardson, supra, 402 U.S. at 401 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938)).

 Plaintiff challenges the finding of the Administrative Law Judge ("ALJ") *fn2" that he is not disabled because he has the residual functional capacity to perform sedentary work in accordance with 20 C.F.R. § 404.1567. *fn3" However, based on the entire record, the Court cannot agree the plaintiff's contention that there is no substantial evidence to support the ALJ's finding that plaintiff is able to perform sedentary work.

 A determination regarding disability must take into account (1) whether plaintiff is currently engaged in substantial gainful activity; (2) whether he has a severe impairment which significantly limits his physical ability to do basic work activities; (3) if plaintiff suffers such an impairment, whether that impairment is listed in the relevant regulation, in which case plaintiff is automatically to be considered disabled based solely upon medical evidence, and if not; (4) whether, despite plaintiff's severe impairment, he has the residual functional capacity to perform his past work; and (5) if unable to perform his past work, whether there is other work plaintiff could perform. See, e.g., 20 C.F.R. § 404.1520; Chico v. Schweiker, 710 F.2d 947, 950-52 (2d Cir. 1983); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam). Plaintiff bears the burden of proof on disability, as reflected in items 1 through 4, and the Secretary bears the burden of proof on item 5. See, e.g., Berry, supra, 675 F.2d at 467; Parker, supra, 626 F.2d at 231.

 In order to determine whether the Secretary's decision is supported by substantial evidence, the Court must look to the entire record, including objective medical facts and clinical findings, diagnoses and medical opinions of examining physicians, subjective evidence of pain and disability, and plaintiff's age, educational background, and work experience. See, e.g., Monguer, [sic] supra, 722 F.2d at 1037; Carroll v. Secretary of Health and Human Services, 705 F.2d 638, 642 (2d Cir. 1983); Parker, supra, 626 F.2d at 231; Marcus v. Califano, 615 F.2d 23, 26 n.2 (2d Cir. 1979). However, these factors need not be given equal weight. See, e.g., Parker, supra, 626 F.2d at 231.

 The record indicates that Mr. Jantz was born on August 9, 1944, is a high school graduate, attended police training school, and worked from 1966 to 1981 as a police officer. In 1981 he injured his back in a fall while on duty, and has not been employed since that time. The ALJ found that plaintiff does suffer a severe impairment which prevents him from returning to his prior police work. Plaintiff does not dispute, however, that he does not suffer from an impairment listed in the regulations which renders him automatically disabled based on medical evidence alone.

 Therefore, the only issue before the Court is whether there is substantial evidence to support the ALJ's finding that plaintiff retains the residual functional capacity to perform sedentary work. The burden of proof on this issue is on the Secretary.

 The record contains no medical evidence that plaintiff is unable to perform any type of work. *fn4" However, there is abundant medical evidence that he is capable of performing sedentary work.

 Dr. Magliato, an orthopedic surgeon working for the Police Department, reported in March 1982 that while plaintiff had signs of a lumbosacral strain, there was no sign of radiculopathy, and he did not feel plaintiff had any significant neurological deficits. He stated that with a few weeks of physical therapy, plaintiff should be able to perform light duties. See Transcript of Administrative Proceedings ("Tr.") 99-100. *fn5"

 Especially significant is a report of the New York State Department of Social Services Office of Disability Determinations, dated July 13, 1982, which found that in an eight hour day plaintiff could sit for two hours, walk for six hours, stand for six hours, bend as needed, and lift or carry twenty pounds frequently. See Tr. at 84. The other medical evidence clearly indicted that plaintiff suffered from a lumbar disc disease but casts no light on plaintiff's ability to do sedentary work.

 While it is unquestionably true that plaintiff has some pathology of the back, the medical evidence clearly supports the conclusion that plaintiff could perform sedentary work, especially since neither plaintiff's treating physician nor any consultative physician found that plaintiff was unable to perform sedentary work. *fn6" The only evidence plaintiff points to as supporting the conclusion that he is not able to perform sedentary work is his own testimony at the Administrative Law Hearing regarding his subjective pain and his limited daily activities.

 The Court recognizes that subjective pain must be considered and may properly be the basis for a finding of disability even absent supporting objective medical evidence. See, e.g., Donato, supra, 721 F.2d at 419; Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980); Marcus, supra, 615 F.2d at 27. The ALJ stated in his decision that he did take plaintiff's testimony of pain into account. However, the ALJ had discretion to weigh the credibility of this testimony, and in light of the rest of the evidence a finding of disability was not mandated by the subjective testimony regarding pain. See, e.g., Vega v. Harris, 636 F.2d 900, 904 (2d Cir. 1981) (per curiam); Marcus, supra, 615 F.2d at 27; Mejias v. Social Security Administration, 445 F. Supp. 741, 743 (S.D.N.Y. 1978). This is particularly so given the absence of any medical evidence supporting plaintiff's contention that he cannot perform sedentary work. See, e.g., Rivera, supra, 623 F.2d at 216; Adams v. Flemming, 276 F.2d 901, 904 (2d Cir. 1960); cf. Fields v. Secretary of Health, Education & Welfare, 444 F. Supp. 1003, 1007 (S.D.N.Y. 1977). The Court holds, therefore, that on this record the ALJ's finding that plaintiff can perform sedentary work is supported by substantial evidence.

 At oral argument counsel for plaintiff challenged the ALJ's finding with respect to plaintiff's ability to perform sedentary work on the ground that plaintiff's treating physicians never directly addressed the issue. Plaintiff was represented by counsel throughout the administrative proceedings and before this Court. Therefore, this is not a situation where the ALJ and the Court have the duty to search the record or request particular kinds of evidence, which would be the case where the plaintiff is unrepresented by counsel. See, e.g., Hankerson, supra, 636 F.2d at 895; Cutler v. Weinberger, 516 F.2d 1282, 1286 (2d Cir. 1975); cf. Gold v. Secretary of Health, Education & Welfare, 463 F.2d 38, 43 (2d Cir. 1972). Moreover, at oral argument plaintiff's counsel acknowledged that no evidence of plaintiff's inability to perform sedentary work existed at the time of the hearing before the ALJ, and that such evidence does not exist at present. There is therefore no new evidence to consider which would require a remand. See, e.g., 42 U.S.C. § 405(g); Mongeur, supra, 722 F.2d at 1038; Cutler, supra, 516 F.2d at 1238.

 Plaintiff's motion for judgment on the pleadings is therefore denied, defendant's motion for judgment on the pleadings is granted, and the decision of the Secretary is affirmed.

 It is SO ORDERED.


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