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VINCENT v. SHALALA

August 12, 1993

LAWRENCE J. VINCENT, Plaintiff,
v.
DONNA E. SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.



The opinion of the court was delivered by: CON. G. CHOLAKIS

 MEMORANDUM DECISION AND ORDER

 This Social Security disability appeal comes before the court on Report-Recommendation of Magistrate Judge Ralph W. Smith. The Magistrate Judge recommends that the case be remanded to the agency for further factual development. This court finds that the record before the court is adequate and contains substantial evidence supporting the Administrative Law Judge's (ALJ) denial of benefits. Accordingly, the decision of the ALJ shall be affirmed.

 The claimant, Lawrence Vincent, is 44 years old. He has suffered from back pain and related problems since 1984, caused by a work-related back injury. He made several early attempts to return to work, but was unsuccessful each time due to back pain. His attending physician, Dr. Hootnick, prescribed medication and physical therapy, along with rest and weight reduction. Claimant has continued physical therapy sporadically, and medication constantly. Claimant also suffers recurrent prostatitis, probably resulting from his back injury, for which he receives antibiotics.

 When it became clear that Mr. Vincent would never be able to return to the heavy work he had always done before, he earned his high school equivalency diploma and registered with Bryant and Stratton Business School to learn computer programming. Because his studies were often thwarted by his back pain and other problems, it took him nearly five years to complete the 18-month program.

 In October 1989, several months before graduation, Mr. Vincent landed a computer job and worked at it for two weeks, until he was involved in an automobile accident. The accident injured his neck and aggravated his back problem, and he chose not to return to work. He did, however, finish school, completing the program in January 1990.

 Mr. Vincent first applied for Social Security disability benefits in 1987, but his application was denied. Administrative Transcript at 46-49 [hereinafter T]. It is uncontested that his insured status *fn1" expired on September 30, 1989, several weeks before he was involved in the aforementioned auto accident. Subsequently, Mr. Vincent again applied for Social Security disability benefits, the denial of which has resulted in the case now before the court. *fn2" Because Mr. Vincent's insured status expired on September 30, 1989, he bears the burden of proving that his current disability predates that expiration. He claims that it does, due to his 1984 back injury. He does not argue for consideration of the effects of his auto accident, nor should they be considered. Although Mr. Vincent's misfortune and bad timing arouse sympathy, because his accident occurred after the expiration of his insured status its effects are irrelevant to this determination and shall not sway the court.

 ISSUE PRESENTED

 The issue centers on whether Mr. Vincent was disabled within the meaning of the Act prior to September 30, 1989. After a full hearing, the ALJ found that he was not. It falls to this court to determine whether the ALJ's decision is supported by substantial evidence.

 A. Standard of Review of Agency Decisions

 The District Court, when reviewing a decision by an ALJ, must undertake a plenary review of the record. The court is constrained to regard as conclusive any factual finding of the Secretary that is "supported by substantial evidence." 42 U.S.C. § 405 (g). Substantial evidence is "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 (1970); Rivera v. Sullivan, 923 F.2d 964 (2d Cir. 1991). "It is the function of the Secretary, not [this court], to resolve evidentiary conflicts and to appraise the credibility of witnesses . . . ." Carroll v. Secretary of Health & Human Services, 705 F.2d 638, 642 (2d Cir. 1983). Therefore, even if the Secretary's factual findings do not reflect what this court considers to be the preponderance of the evidence, as long as they are supported by substantial evidence they must be respected. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212, 75 L. Ed. 2d 447, 103 S. Ct. 1207 (1983). To act otherwise is to exceed the scope of review mandated by Congress. *fn3"

 B. The Decision of the ALJ is Supported By Substantial Evidence

 The ALJ has found that Mr. Vincent was not disabled prior to September 30, 1989. The ALJ determined that, while Mr. Vincent could not have resumed the type of work he had formerly done, he was capable of performing a sedentary job, of which there are a significant number in the national economy. Mr. Vincent avers that the ALJ's findings are not supported by substantial evidence.

 Magistrate Judge Smith recommends that the case be remanded to the agency for further factual development. His recommendation is rejected. The record before the court contains substantial evidence supporting the Ail's decision, and that decision shall be affirmed.

 C. The Social Security Act

 An applicant for Social Security disability benefits is considered to be disabled for the purposes of the Social Security Act (Act) 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 result in death or which can be expected to last for a continuous period of not less that 12 months." 42 U.S.C. § 423 (d) (1) (A). This includes not only work the applicant did before his alleged disability, but any work for which he is qualified. *fn4"


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