Delsie v. Shalala

842 F. Supp. 31, 1994 U.S. Dist. LEXIS 664, 1994 WL 22568
CourtDistrict Court, D. Massachusetts
DecidedJanuary 24, 1994
DocketCiv. A. No. 92-40194-GN
StatusPublished
Cited by2 cases

This text of 842 F. Supp. 31 (Delsie v. Shalala) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Delsie v. Shalala, 842 F. Supp. 31, 1994 U.S. Dist. LEXIS 664, 1994 WL 22568 (D. Mass. 1994).

Opinion

MEMORANDUM AND ORDER

GORTON, District Judge.

Pending before this Court is a review of the final decision reached by the Secretary of Health and Human Services (“Secretary”) under the Social Security Act, as amended, 42 U.S.C. § 405(g).

On October 29, 1990, Laureen M. Delsie filed an application for disability insurance benefits and supplemental security income claiming she has been unable to work since October 1988 due to a combination of medical problems. These problems include chronic post-surgery back and leg pain secondary to degenerative disc disease, chronic sinusitis and possible temporomandibular joint (TMJ) syndrome. Plaintiffs applications were denied initially and after reconsideration by the Social Security Administration (“SSA”).

The Administrative Law Judge (“ALJ”) considered the matter de novo, and on March 24, 1992, found that plaintiff was not under any disability. On October 7, 1992, the Appeals Council denied the request for review, rendering the decision of the ALJ the final decision of the Secretary of Health and Human Services. Plaintiff subsequently filed this motion to review the Secretary’s decision.

I. FACTS

Plaintiff was 48 years old at the time of the ALJ decision, had previous work experience as a school cafeteria worker and housekeeper. Plaintiff claims that she ceased working in October of 1988 due to sciatic nerve damage in her right lower back and right leg. She also testified that she has left leg, bilateral arm and face pain and numbness, an inner ear condition, poor equilibrium, sinus [33]*33problems and temporomandibular joint (“TMJ”) syndrome.

In February or March 1986, plaintiff claims to have injured her back lifting 40 pounds of frozen hamburger while working in a cafeteria. From 1986 to 1989, Ms. Delsie reported back, leg and neck pain to various physicians, including Drs. Fager and Toomey. She was evaluated at Burbank Hospital, Lahey Clinic and Leominister Hospital for her complaints.

The SSA sent Ms. Delsie to Dr. Muspratt on January 10,1991 for a consultative examination. Dr. Muspratt reported that Ms. Delsie walked with a slight limp. His assessment of the patient was sciatica L5, SI radiculopathy status post laminectomy, with persistent pain and sensory deficit (mild).

The plaintiff claims that she continued to undertake tasks of daily living, including housework, marketing, shoveling snow and driving. She drives only short distances due to pain and takes propoxyphene, if necessary. When in severe pain, plaintiff walks around for a few minutes and then sits for a while with her foot elevated. Ms. Delsie testified that she could alternate sitting and standing three to four hours a day and that she could perform work while seated, subject to a need to alter her position at will and to elevate her leg.

On January 23, 1991 and April 9, 1991, after a review of the medical evidence, non-examining physicians, Drs. Radovsky and Dereehin, rendered assessments of the plaintiffs residual physical functional capacity. Both physicians agreed that the plaintiff could sit for about six hours in an eight hour day and do unlimited pushing and pulling, including operation of hand and foot controls, subject to some lifting and carrying restrictions. Both physicians noted there was no evidence of manipulative, visual, communicative or environmental restrictions.

Ms. Delsie has also been reported to suffer from anxiety and other symptoms of mental impairment. Reports of both the Lahey Clinic and Dr. Toomey note anxiety. Plaintiff testified that she feels uncomfortable around several people at one time and noted that stress causes nervousness and irritability. The Administration sought a psychological evaluation but Ms. Delsie refused. There is no evaluation of the plaintiffs mental status in the record and there is no evidence illustrating diagnosis of or treatment for emotional complaints.

II. LEGAL ANALYSIS

Plaintiff contends that the decision of the ALJ is not supported by substantial evidence and was an improper application of the law. Specifically, she claims that the discrediting of her complaints of pain by the ALJ was unsupported by substantial evidence in the record. Furthermore, Ms. Delsie asserts that due to the existence of non-exertional impairments, the ALJ improperly relied on the Medical Vocational Guidelines found at Appendix 2, Subpart P (the “grid”). Finally, plaintiff alleges that the ALJ erred in dismissing the issue of her mental impairment without obtaining a psychiatric review. This Court finds the plaintiffs factual contentions unpersuasive and disagrees with her legal arguments.

Review of the Secretary’s final decision is limited as mandated by 42 U.S.C., § 405(g). Factual findings by the Secretary must be affirmed if they are supported by substantial evidence. Id.; Lizotte v. Secretary of Health and Human Services, 654 F.2d 127, 128-130 (1st Cir.1981); Reyes Robles v. Finch, 409 F.2d 84, 86 (1st Cir.1969). This Court defers to the ALJ’s determinations concerning the credibility of witnesses and conflicts in evidence relating to plaintiffs disability. Lizotte, 654 F.2d at 128-130. Although the record may arguably support more than one conclusion, the Secretary’s decision must be upheld, “if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support (her) conclusion.” Ortiz v. Secretary of Health and Human Services, 955 F.2d 765, 769 (1st Cir.1991) (quoting Rodriguez v. Secretary of Health and Human Services, 647 F.2d 218, 222 (1st Cir.1981)); see also Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971).

Resolution of credibility issues and conflicts in the evidence are for the Secretary, not the courts. Ortiz, 955 F.2d at 769; [34]*34Evangelista v. Secretary of Health and Human Services, 826 F.2d 136, 141 (1st Cir. 1987). Where facts permit diverse inferences, the Secretary will be affirmed so long as the inferences drawn are supported by the evidence. Rodriguez Pagan v. Secretary of Health and Human Services, 819 F.2d 1, 3 (1st Cir.1987), cert. denied, 484 U.S. 1012, 108 S.Ct. 713, 98 L.Ed.2d 663 (1988); Lizotte 654 F.2d at 128.

To establish entitlement to benefits, a plaintiff has the burden of proving that he has become disabled within the meaning of the Social Security Act. Bowen v. Yuckert, 482 U.S. 137, 146-47 n. 5, 107 S.Ct. 2287, 2293-94 n. 5, 96 L.Ed.2d 119 (1987); Deblois v.

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Bluebook (online)
842 F. Supp. 31, 1994 U.S. Dist. LEXIS 664, 1994 WL 22568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delsie-v-shalala-mad-1994.