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WRIGHT v. CHATER

July 9, 1997

GABRIEL WRIGHT, Plaintiff,
v.
SHIRLEY S. CHATER, COMMISSIONER OF SOCIAL SECURITY, Defendant.



The opinion of the court was delivered by: LARIMER

 Plaintiff Gabriel Wright ("Wright") commenced this action pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Health & Human Services ("the Commissioner"), denying his applications for Social Security disability and Supplemental Security Income benefits. Pending before me are the parties' cross-motions for judgment on the pleadings, pursuant to Fed. R. Civ. P. 12(c). For the reasons set forth below, the Commissioner's motion is granted and plaintiff's motion is denied.

 PROCEDURAL BACKGROUND

 Wright applied for Disability Insurance and Supplemental Security Income (SSI) benefits on November 29, 1993 Tr. 64-66, 94-96. *fn1" The plaintiff, who was born on January 25, 1976, claimed disability as a result of gunshot wounds to his right hand on May 1, 1993. At the time of his application, a surgeon had operated on plaintiff's hand at least twice in attempts to restore functioning. Plaintiff had worked as a fast-food laborer, but had not worked enough to be considered to have any "past relevant work". Social Security denied plaintiff's applications and plaintiff requested reconsideration, which Social Security also denied. Tr. 67-93, 100-105.

 The plaintiff requested a hearing to dispute the denials. Tr. 130-131. After the hearing, an Administrative Law Judge ("ALJ") issued a written decision in which she found Wright not disabled. Tr. 9-18. The ALJ found that plaintiff could not perform a full range of work in the "light" category, but found there were significant numbers of jobs in the national economy which the claimant could still perform despite his disabilities. Tr. 17. In a letter dated February 9, 1996, the Commissioner's Appeals Council affirmed the ALJ's decision. The ALJ's decision thus became the Commissioner's final decision. Tr. 4-5.

 MEDICAL EVIDENCE

 Wright suffered a gunshot wound on May 1, 1993 for which he was treated by Ralph Pennino, M.D. Tr. 170 -180. That day, Dr. Pennino performed surgery to clear and reconstruct the wound. Tr. 171-172. The doctor continued to treat plaintiff over the next several months until at least July 1994. Tr. 200. During that time, Dr. Pennino performed at least two other procedures to repair plaintiff's wounds. The doctor's office notes indicate a frustration with plaintiff's compliance with recommended rehabilitation. Dr. Pennino noted that Wright failed to follow through with physical therapy appointments and home therapy. Tr. 200-201. Eleven months after the shooting, Dr. Pennino completed a "Medical Report (Employment)" in which he noted his opinion that Wright was capable of working full-time, but with limitations in the amount of pushing and pulling with his right hand, and working at a high rate of speed. The report included the comment "no repetitive work at all." Tr. 249.

 The record also contains several reports from the Physical Medicine and Rehabilitation Center, where Wright underwent the physical therapy Dr. Pennino ordered. Those show that Wright missed the majority of his appointments. Tr. 240. On March 1, 1994, the physical therapist apparently discussed the reason for plaintiff's failure to attend sessions, and even asked whether he wished to attend therapy closer to home. Tr. 221. Wright "expressed a desire to continue here at [Rochester General Hospital]." Id. The record does not contain information regarding any other impairments.

 NON-MEDICAL EVIDENCE

 At the hearing before the ALJ, Wright testified that he was right-hand dominant. Tr.35. He also told the ALJ that he attended all but one or two of the physical rehabilitation sessions. Tr. 48. Wright complained that the pain in his hand lasted for over one year (Tr. 46), and that he experienced pain at the site of a bone graft on his hip if he walked for over fifteen minutes. Tr. 50.

 A vocational expert ("V.E"). testified at the hearing that an individual with limited use of the non-dominant hand could no longer perform the janitorial job that plaintiff previously held at McDonald's. Tr. 53. The V.E. also stated that there were jobs available in the local and national economy for individuals with limited education and job skills, and with little or no use of one hand. In particular, the V.E. identified at least three positions - bakery line inspector, copy messenger, and parking attendant. Tr. 53-54. The V.E. also noted that while bimanual ability would make a person more efficient at these positions, "they could be done by the non-dominant hand." Tr. 54.

 DISCUSSION

 A. The Standard of Review

 A court may reverse the factual findings of the Commissioner only if those findings are not supported by substantial evidence in the record. 42 U.S.C. § 405(g). Substantial evidence is "more than a mere scintilla. It 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. Thus, the determination of the Commissioner is conclusive as long as it is supported by ...


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