medications which lessen but do not relieve constant pain, Record at 52-56, and are, if considered severally from the other ailments, the most disabling factors, according to plaintiff and the documentation. The diabetes has for several years been well controlled by daily injections of insulin but promotes drowsiness, lessened appetite, blurred vision and pain due to the swelling of his hands. Record at 40-41. The hypertension and associated headaches are controlled by medication. His rheumatoid arthritis, reflected primarily in his right shoulder and arm, produces constant pain and, in his estimation, severe limitations on his ability to lift, carry, or sweep. He takes medication with a codeine base to relieve, in part, this problem. Record at 49-52. Cardiac arrythmia produces occasional but acute pain, Record at 65-67, but Davis contends he is "short-winded" and can only climb two or three steps. Record at 67-69.
Prior to surgery in 1981, plaintiff had been employed as a waiter, school custodian, a porter and attendant in a supermarket, a furniture handler, and a railroad car cleaner. From 1976 to 1979, he was not employed. Subsequent to the 1981 surgery, the record indicates that plaintiff has not resumed working.
A federal court may not reweigh the evidence presented to it when reviewing a disability claim decision made by the Social Security Administration, nor may it replace the Secretary's judgment concerning the weight and validity of the evidence with its own. DiBenedetto v. Secretary of the Department of Health and Human Services, 518 F. Supp. 786, 787 (D.D.C. 1981), Wesley v. Secretary of Health, Education and Welfare, 385 F. Supp. 863, 865 (D.D.C. 1974). "In these matters deference is to be afforded the administrative decision and it is not for the trial court to review de novo the Secretary's final decisions as to findings of fact and the reasonable inferences to be drawn therefrom." Reyes v. Secretary of Health, Education and Welfare, 155 U.S. App. D.C. 154, 476 F.2d 910, 914 (D.C. Cir. 1973). Nor, however, may the Court merely act as a "rubberstamp" to administrative decisions. Perli v. Schweiker, 543 F. Supp. 394, 395 (S.D.N.Y. 1982). Rather, it is the duty of the Court to "carefully scrutinize the entire record," Klug v. Weinberger, 514 F.2d 423, 425 (8th Cir. 1975), in order to determine whether the Secretary's decision is supported by "substantial evidence," as provided in 42 U.S.C. § 405(g). Parker v. Harris, 626 F.2d 225 (2d Cir. 1980); Champion v. Califano, 440 F. Supp. 1014, 1015 (D.D.C. 1977). In Richardson v. Perales, 402 U.S. 389, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971), the Supreme Court defined this requisite standard to be "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 401, citing Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938).
"Substantial evidence" does not merely refer to the requisite quantitative evidence necessary to uphold an ALJ decision. It is a qualitative standard as well, as the evidence must address the necessary statutory test for disability benefits eligibility provided in 42 U.S.C. § 423(d)(1)(A). The Social Security Act defines "disability" as an "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." Id. Inability to engage in substantial gainful activity not only includes inability to do his previous work but requires as well an inability, ". . . considering his age, education, and work experience, [to] 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 work." 42 U.S.C. § 423(d)(2)(A).
Regulations have been promulgated as an assistance in evaluating whether a claimant has satisfied statutory requirements. Under 20 C.F.R. § 404.1520(a)-(f) (1982) a sequential step process is considered; a finding of no disability at any one of these sequential steps, dictates an end to the inquiry. Under the first step in the evaluation, the claim will be denied if the claimant is presently engaged in substantial gainful activity. 20 C.F.R. § 404.1520(b). Similarly, if a severe impairment is not proved, disability has not been satisfied. 20 C.F.R. § 404.1520(c).
If the claimant suffers from a less severe impairment and therefore does not meet the criteria of Appendix 1 (Listing of Impairments), the Secretary must determine whether he retains the ability to perform either his former work or less onerous employment. If he can pursue his former work, he is not entitled to disability benefits. See 20 C.F.R. § 404.1520(e). Lastly, if there exists an inability to return to past employment or a less demanding occupation, one's "residual functional capacity[,] . . . age, education, and past work experience" are evaluated to determine, by an individual assessment of each of the claimant's job qualifications (abilities and limitations) measured against each of those factors, whether he is able to engage in other work. 20 C.F.R. § 404.1520(f).
The Secretary must also consider the existence, if any, of jobs in the national economy that could be performed by a person having claimant's qualifications. Id.; 20 C.F.R. §§ 404.1566-404.1569. See, Heckler v. Campbell, 461 U.S. 458, , 103 S. Ct. 1952, 76 L. Ed. 2d 66, 51 U.S.L.W. 4561, 4563 (1983).
It should be noted that an individual must adhere to prescribed treatment in order to be eligible to receive benefits, "if this treatment can restore [one's] ability to work." 20 C.F.R. § 404.1530 (1982).
Since the Secretary determined here that Davis was able to pursue his former work, and therefore held him ineligible for disability benefits, she did not assess whether his abilities, limitations, and overall qualifications would allow his engagement in other work and, if so, whether there were jobs existing in the national economy that this claimant could perform.
Accordingly, if in light of the above, the Secretary's determination in accepting the decision of the Appeals Council (which upheld the ALJ's decision) is supported by substantial evidence, the Court must affirm the Secretary's decision. If the Secretary's decision cannot be affirmed, the matter would have to be remanded to the agency for further consideration.
Mindful that it is within the province of the ALJ, and not the Court, to evaluate conflicting evidence, DiBenedetto, 518 F. Supp. at 788, this Court's obligation nonetheless, to scrutinize the record, cannot be minimized: "if, for example, reliance has been placed upon one portion of the record to the disregard of overwhelming evidence to the contrary, the courts are . . . bound to decide against the Secretary." Ainsworth v. Finch, 437 F.2d 446, 447 (9th Cir. 1971), quoting Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964).
At the hearing, the ALJ heard extensive testimony from Davis concerning his age, lifestyle, work history, ailments, complaints of pain and was able also to personally observe plaintiff's physical demeanor. In addition, the ALJ had before him hospital records dated from 1974 to the present, as well as detailed physician reports prepared by several doctors.
Although all these factors, "(1) medical data and findings; (2) expert medical opinions; (3) subjective complaints; and (4) plaintiff's age, education and work history," are proper elements to be considered by an ALJ in considering a plaintiff's claim, DiBenedetto, 518 F. Supp. at 787, uncontradicted expert opinion of a treating physician should be accorded considerable deference by the ALJ. "The expert opinions of a treating physician as to existence of a disability are binding on the fact finder unless contradicted by substantial evidence to the contrary." Aubeuf v. Schweiker, 649 F.2d 107, 112 (2d Cir. 1981); McLaughlin v. Secretary of Health, Education and Welfare, 612 F.2d 701, 705 (2d Cir. 1980) (quoting Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978)); Eiden v. Secretary of Health, Education and Welfare, 616 F.2d 63 (2d Cir. 1980); Wander v. Schweiker, 523 F. Supp. 1086 (D. Md. 1981).
Here, close examination of the record dictates that the Court reverse the Secretary's determination that plaintiff is not disabled, as substantial evidence does not exist to support the ALJ's decision that plaintiff is able to resume past employment.
Dr. Ata O. Moshyedi, plaintiff's treating physician since 1974, consistently opined that Davis' numerous ailments were chronic in nature and caused him severe and continual pain. Record at 122, 124, 135-36. The doctor concluded that Davis' "clinical presentation had exceeded 12 months duration" and that he was "unable to return to work due to persistent abdominal pain," Record at 142; as early as May, 1981 he recommended that Davis "be retired on the basis of disability." Record at 115. Not only was this expert medical opinion uncontradicted by Dr. Kenneth Goldstein, defendant's evaluating physician, but Dr. Goldstein found plaintiff to be a "Thin, chronically ill appearing male," presently experiencing "significant abdominal pain." Record at 131. Nowhere in his report did that doctor state that plaintiff was able to work. Hence, although the opinion of plaintiff's treating physician is uncontroverted, the ALJ appears to have placed little if no weight on this unchallenged evidence, finding Davis' pain to be acutely episodic rather than chronic, despite Dr. Moshyedi's corroborated determination of chronicity. He ignored his own expert's findings of pain, which were not limited by any characterization such as "chronic" or "acute" or "episodic".
Independent of Dr. Moshyedi's findings referencing Davis' chronic, unbearable pain, indeed seeking those records to assist his evaluation, Dr. Goldstein still concluded that Davis was at that time in "significant" abdominal pain. Nowhere does defendant's doctor even suggest, much less confirm, the bland conclusion of the ALJ that Davis' impairments cause him abdominal "discomfort" and "infrequent episodes of acute pain".
Material facts in the record were disregarded. The ALJ found that Davis had three impairments, thus failing to consider at least two additional ailments reported both by plaintiff and numerous hospital/physician records.
Moreover, although the ALJ correctly stated that plaintiff's physician reported that plaintiff's chronic abdominal pain was not activity-related, Record at 135, the ALJ's conclusion that this meant plaintiff could resume past employment is illogical. The fact that plaintiff did work in the past during periods of intense pain should not militate against him as the ALJ's evaluation suggests, but instead should be viewed in favor of his argument.
Acknowledging that the ALJ was able to observe plaintiff's demeanor, and the Court was not, there is recognized value of plaintiff's subjective testimony. "Evidence of subjective pain is relevant and probative to the law judge's ultimate determination of disability . . . and failure to consider it is ground for remand." Diabo v. Secretary of Health, Education and Welfare, 200 U.S. App. D.C. 225, 627 F.2d 278, 282 (D.C. Cir. 1980).
Here, while the ALJ did describe and consider some of the plaintiff's complaints of continual, disabling pain, he concluded, surprisingly, in light of the overwhelming evidence, that Davis' complaints were "not credible". Those conclusions he based on his evaluation of the evidence:
. . . Claimant's testimony as to his inability to work and his inability to fulfill the exertional requirements of his prior work is not credible in light of the infrequent and episodic nature of acute pain, the relief that medication brings, and the evidence that claimant maintains full range of motion in all extremities. The undersigned observed that did not exhibit any sign of physical limitation that would be consistent with his subjective complaints of constant disabling pain. More important, while claimant's condition causes some abdominal discomfort and episodes of acute pain, medical evidence fails to establish the existence of a medically determinable impairment that causes him continual pain that precludes him from engaging in his past work. Reports have shown that claimant's discomfort is not related to exertion. This is further demonstrated by claimant's ability to continue working after being treated for an episode of acute pain.