Dr. Joseph J. Gottesman reported, on July 15, 1992, that X-rays of Gernavage's right shoulder were negative, and that X-rays of the cervical spine showed degenerative disc disease at the C5-6 level. Defendant Mem. at 10.
Lastly, Gernavage's own testimony is that he is unable to sit for more than two hours; he can stand for only approximately two hours; he can only walk a distance of five to six blocks without a problem; he can carry up to 25 pounds for a short period; and he suffers numbness in his right hand. Plaintiff Mem. at 10. Gernavage also testified that he had taken Naprosyn and received injections of Cortisone and that these medications provided him with some relief from his pain. Defendant Mem. at 4. He further stated that his pain was less severe than it had been one and half years earlier. Id.
A. Standard of Review
There is no dispute between the parties as to the standard of review that this Court should employ. The Act provides that "the findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. §§ 405(g), 1383(c)(3); Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971); Donato v. Secretary of Dep't of Health and Human Services, 721 F.2d 414, 418 (2d Cir. 1983); Parker v. Harris, 626 F.2d 225 (2d Cir. 1980). Therefore, if this Court finds that there is substantial evidence supporting the Secretary's decision, the Secretary's decision must be upheld. This is true even if there is also substantial evidence for plaintiff's position. See Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982).
Substantial evidence in this context has been defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (citations omitted); see also Donato, 721 F.2d at 418; Parker, 626 F.2d at 231. The Secretary's findings are conclusive even when a reviewing court's independent analysis of the evidence may differ from the Secretary's analysis. See 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) ("factual issues need not have been resolved by the Secretary in accordance with what we conceive to be the preponderance of the evidence.") But the Court has a duty to scrutinize the record, and not to merely "rubber-stamp the decisions of the Secretary." Lynn v. Schweiker, 565 F. Supp. 265, 267 (S.D.Tex. 1983).
B. Burden of Proof
Plaintiff has the burden of establishing that he is disabled within the meaning of the Act. He must demonstrate (1) that he is unable to engage in substantial gainful activity by reason of a physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of at least twelve months, and (2) that the existence of such impairment is demonstrated by evidence supported by data obtained by medically acceptable clinical and laboratory diagnostic techniques. See 42 U.S.C. §§ 423(d), 1382(a)(3)(A); Parker, 626 F.2d at 230. Plaintiff also must prove that he cannot return to his prior occupation. See Parker, 626 F.2d at 231; Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). The Secretary must then prove, considering plaintiff's age, education, past work experience and medical disability, that there is alternative substantial gainful work in the national economy that plaintiff could perform. 42 U.S.C. § 423(d)(2)(A).
The Second Circuit established a five-step progression to facilitate the evaluation of disability claims.
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.