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SMITH v. SHALALA

February 17, 1994

ESTHER SMITH, Plaintiff,
v.
DONNA E. SHALALA, Secretary of Health and Human Services, Defendant.



The opinion of the court was delivered by: I. LEO GLASSER

 GLASSER, United States District Judge:

 This is an action under 42 U.S.C. § 405(g) to review a final decision of the Secretary of Health and Human Services (the "Secretary") that denied plaintiff's applications for Supplemental Security Income disability benefits under Title XVI of the Social Security Act, § 1381 et seq. (the "Act"), and Disability Insurance benefits under Title II of the Act. The Secretary has moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Plaintiff has cross-moved for the same relief or, in the alternative, for a remand to the Administrative Law Judge ("ALJ") to supplement the record. Plaintiff also seeks attorneys' fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. For the reasons stated below, the Secretary's motion is granted and the claimant's cross-motions are denied.

 FACTS

 Plaintiff Esther Smith ("Smith") is a 62 year old woman with a high school education. Record ("Rec.") at 42, 27. From 1937 to on or about February 25, 1990, plaintiff worked as a presser for a drapery company ironing draperies. Rec. at 28-29. *fn1" This job required her to stand "all the time," fold draperies, and lift an iron of approximately two to three pounds. Rec. at 28. Plaintiff did not leave her place of employment because of an accident or medical problems; she was laid off because there was no more work and she has not worked since. Rec. at 29. On March 6, 1991, plaintiff filed concurrent applications for Supplemental Security Income disability benefits and Disability Insurance benefits. Plaintiff stated in her application that she "became unable to work because of [her] disabling condition on February 26, 1990." Rec. at 42. Plaintiff claims disability because of rheumatoid arthritis, hypertension, arthritis, high blood pressure, chronic obstructive pulmonary disease ("COPD"), and pain.

 Plaintiff's claims were denied at both the initial level, Rec. at 54-57, and at the reconsideration level, Rec. at 69-72. Plaintiff had first claimed that she was disabled because of arthritis and high blood pressure, but at the initial level the Secretary stated that "medical evidence shows that you have had normal blood pressure and normal examination findings." Rec. at 57. In denying her request for reconsideration, the Secretary stated that "the medical evidence shows that you have had pain, but you are able to move about freely. Based on your description of your job as a presser, your condition does not prevent you from performing this work." Rec. at 72. Plaintiff therefore filed a request for a hearing before an Administrative Law Judge on October 16, 1991. Rec. at 87-90. *fn2" The hearing was held on January 22, 1992, where plaintiff was represented by a paralegal from the Bedford-Stuyvesant Community Legal Services Corporation. Rec. at 23-41. On June 17, 1992, the ALJ concluded that plaintiff has a residual functional capacity ("RFC") to perform her past work as a presser and is not disabled under the relevant Social Security regulations. Rec. at 19.

 This denial constituted the final decision of the Secretary when the Appeals Council denied plaintiff's request for review. Rec. at 4-6. In her request for a review of the ALJ's decision, Smith submitted a report dated September 1, 1992, from a Registered Physician's Assistant at the Stuyvesant Heights Medical Group. Supplemental Record at 1-6. The Appeals Council, however, concluded that the report "offers no new medical findings over what has previously been reported by this treating source and which is contained in the record that was before the [ALJ]." Rec. at 4. Smith thereafter filed the instant appeal with this court.

 Smith argues that the ALJ's decision should be overturned because (i) the ALJ erred by not properly evaluating her allegations of disabling pain; (ii) the evidence does not support the ALJ's determination that Smith is capable of performing her past work as a presser or other light work; and (iii) the ALJ erred in not giving more weight to Smith's treating source. In the alternative, plaintiff requests a remand because, among other things, the ALJ erred in failing to determine the onset date of Smith's disability. Pl.'s Mem. at 10-26. Plaintiff is also seeking an award of attorneys's fees. The Secretary, on the other hand, contends that the ALJ's denial of benefits should not be overturned because it was based on substantial evidence.

 I. Scope of Review

 A claimant is entitled to benefits only if he or she has a "disability," which is defined under the Act as the inability "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 has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). "Physical or mental impairment" is defined as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstratable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. §§ 423(d)(3) and 1382c(a)(3)(C). That impairment must be of such severity that the claimant,

 
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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for such work.

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

 Pursuant to the sequential evaluation process established by the Social Security regulations, if a claimant's impairments are not listed in the "Listing of Impairments" contained in the Appendix of the regulations, the Secretary must assess the claimant's "residual functional capacity" ("RFC"); that is, the claimant's capacity to engage in basic work activities. If the claimant's RFC permits him to engage in his prior work, benefits are denied. 20 C.F.R. §§ 404.1520(e), 416.920(e). The ALJ determined that plaintiff has the RFC to perform her past work as a presser. Rec. at 19 ("The claimant's impairments do no prevent the claimant from performing her past relevant work."). The ALJ also noted that plaintiff has the RFC to perform other light work. Rec. at 18 ("She retains the residual functional capacity for light work unassociated with dust and fumes.").

 The Secretary's findings are conclusive if supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Bluvband v. Heckler, 730 F.2d 886, 891 (2d Cir. 1984). Substantial evidence "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 842, 91 S. Ct. 1420 (1971). "It is more than a mere scintilla or a touch of proof here and there in the record." Williams on Behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). "The substantial evidence test, moreover, applies not only to the Secretary's findings of fact, but also to the inferences and conclusions of law to be drawn from such facts." Marchand v. Sullivan, No. 90 Civ. 676, 1991 WL 183355 at * 2 (S.D.N.Y. Sept. 11, 1991) (citing Rodriguez v. Califano, 431 F. Supp. 421, 423 (S.D.N.Y. 1977)). "The Court may not substitute its own judgment for that of the Secretary, even if it might justifiably have reached a different result upon a de novo review." Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991). "If the Court finds that there is substantial evidence supporting the Secretary's determination, the Court must uphold the Secretary's decision, even if there is also substantial evidence in support of the plaintiff's position." Greene v. Sullivan, No. 90 Civ. 8181, 1992 WL 176661 at *3 (S.D.N.Y. July 16, 1992) (citing Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982)).

 II. The Medical Evidence

 A. Arthritis

 In a consultative examination dated May 7, 1991, Dr. Mehta wrote that plaintiff,

 
Walks with a normal gait. Able to stand on toes and on heels. Able to squat 3/4 of the way. Able to get dressed and undressed without difficulty. Able to get on and off the examination table without difficulty and does not use any devices to ambulate.

 Rec. at 135. Dr. Mehta also noted that there is "no paracervical tenderness" in the joints and cervical area. Rec. at 135. He stated that "all the movements are normal." Rec. at 135. Furthermore, he observed that there is no swelling or deformity in the shoulders, elbows, wrists, hands, hips, knees, and ankles. Rec. at 136. Plaintiff, he noted, is "able to make a fist of 100 percent)" and "fine and gross movements are present and grip is normal." Rec. at 136. Dr. Mehta also ...


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