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WASHINGTON v. BOWEN

November 1, 1986

JOSEPH WASHINGTON, Plaintiff,
v.
OTIS R. BOWEN, M.D., SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant



The opinion of the court was delivered by: WEINFELD

WEINFELD, D.J.

Plaintiff, Joseph Washington, commenced this action under 42 U.S.C. section 405(g) and section 1383(c)(3) to review a final determination of the defendant, the Secretary of Health and Human Services (the "Secretary"), which denied plaintiff's application for federal disability insurance benefits and supplemental security income (SSI) based on his alleged disability.

 The defendant and plaintiff both move for judgment on the pleadings. Plaintiff alternatively cross moves to vacate and remand the administrative decision to the Secretary for further proceedings.

 Background

 Plaintiff, 46 years of age and a high school graduate who was employed for over twenty years, first, as a clerk in and then as supervisor of a shipping department, applied for disability insurance benefits on May 3, 1982 based on alleged disability arising from a blocked artery. His application was denied initially and then again on reconsideration. On May 14, 1982 plaintiff requested SSI benefits which were also denied. At his request, a hearing was held on both applications. An Administrative Law Judge (ALJ) considered the case de novo and found the plaintiff not to be disabled. The Appeals Council declined to review this decision on June 15, 1983, and therefore it became the final decision of the Secretary. Thereupon plaintiff commenced this action on August 2, 1983. The case was remanded on November 14, 1984 to the Secretary for a rehearing due to partial inaudibility of the tape recording of plaintiff's original administrative hearing. A de novo hearing was conducted on June 7, 1985, before another ALJ, and on September 10, 1985 he issued a recommendation that plaintiff neither be considered disabled nor entitled to disability benefits.

 On December 10, 1985 the Appeals Council decided that additional evidence should be obtained from plaintiff's treating physician, and that further clarification of the basis for the ALJ's recommendation should be obtained. Thereafter, the ALJ again recommended that plaintiff be found not to be disabled, and on June 11, 1986 the Appeals Council accepted this recommendation.

 Discussion

 The issue on these motion is whether or not the record contains substantial evidence to support the Secretary's decision that plaintiff is not disabled under 42 U.S.C. section 423(d). *fn1" Thus, if the court finds that there is substantial evidence supporting the Secretary's determination, the Secretary's decision must be affirmed, even if there is also substantial evidence in support of plaintiff's position. *fn2" Substantial evidence has been defined as "'more than a mere scintilla. It means such relevant evidence as reasonable mind might accept as adequate to support a conclusion.'" *fn3"

 It is the function of the Secretary, not the court, to resolve evidentiary conflicts and to appraise the credibility of witnesses, including the claimant. *fn4" Consonant with this principle, while the opinions of treating physicians deserve special respect, genuine conflicts in the medical evidence are for the Secretary to resolve. *fn5" However, it should be noted that the expert opinions of a treating as tot he existence of a disability are binding on the factfinder unless contradicted by substantial evidence to the contrary, *fn6" and here the plaintiff's treating physicians have found him to be disabled. It is also uncontradicted that plaintiff suffers from a heart condition.

 Plaintiff contends that the Administrative Law Judge's decision ignored the report of plaintiff's treating facility and physicians despite having those assessments available to him at the time of his recommended decision; that his second decision, dated April 7, 1986, on remand from the Appeals Council, is silent as to plaintiff's dizziness as an ailment; that the ALJ ignored plaintiff's testimony and his treating facility's documentation of chest pains; and that in his April 1986 decision, the ALJ admits that plaintiff's capacity to perform the full range of sedentary work is reduced by his nonexertional limitations.

 A. Consideration of Medical Testimony

 A medical report from the Sidney Hillman Health Center, dated March 18, 1983, evaluated the plaintiff's functional capacity as being able to sit for only two hours, stand two hours, sit and stand, alternatively, for four hours, and that he was unable to walk three city blocks. The plaintiff's treating facility reported on March 27, 1985 that this continued to be plaintiff's residual functional capacity, and his treating physician, Dr. Awini, stated as recently as February 26, 1986 that his condition had not changed. However, there is substantial counter evidence supporting the Secretary's finding of no disability.

 On July 23, 1985 Dr. Selig Ginsburg, a consultative examining physician for the Secretary, found that based upon the objective medical available to him, plaintiff's ability to sit, stand, and handle objects unlimited and that he was subject to no environmental restrictions. Dr. Stuart Fox, another consultative examining physician, had already found, on June 8, 1982, that plaintiff could sit for 6 hours, stand for one hour and walk for one-half four in an eight-hour day. Dr. Wolfermann, a medical advisor and reviewing physician, found plaintiff could sit eight hours, walk six hours and stand six hours in an eight-hour day, and Dr. Samuels, a second medical advisor and reviewing physician, found that plaintiff could sit and stand for six hours a day and frequently lift or carry up to 25 pounds. No physician noted any sensory or mental impairments, or any limitations on plaintiff's ability to use his hands for repetitive grasping and fine manipulations. All of these evaluations fit within the Social Security Ruling 83-10 which states that sedentary work involves sitting 6 hours per day and walking and standing not in excess of two hours each day. Thus, it is clear that substantial medical evidence exits, and that the ALJ's decision indicates that this evidence was considered by him, which is contrary to the reports of plaintiff's treating physicians. While the ALJ might have been more precise and categorical in discussing why the plaintiff's treating physicians' opinions were not persuasive in regard to establishing his disability, he: (1) clearly put forth the opposing medical evaluations and the weight be attached to each of them; *fn7" (2) stated that he did not find plaintiff's subjective medical evidence, which plaintiff's ...


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