Chicager v. Califano, 77-1508

• Decision Date: 04 January 1978
• Docket Number: No. 77-1508,77-1508
• Parties: Paul CHICAGER, Appellant, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 161

574 F.2d 161

Paul CHICAGER, Appellant, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare.

No. 77-1508.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit Rule 12(6) Jan. 4, 1978.

Decided March 20, 1978.

James A. Kudasik, Somerset, Pa., for appellant.

Blair A. Griffith, U.S. Atty., Craig R. McKay, Asst. U.S. Atty., Pittsburgh, Pa., Stephanie W. Naidoff, Regional Atty., Joseph M. Masiuk, Asst. Regional Atty., Office of Gen. Counsel Region III, Dept. of Health, Education, and Welfare, Philadelphia, Pa., for appellee.

Before SEITZ, Chief Judge, and GIBBONS and GARTH, Circuit Judges.CC OPINION OF THE COURT

GIBBONS, Circuit Judge.

This is an appeal from a final order of the district court granting summary judgment in favor of the Secretary of Health, Education, and Welfare and against Paul Chicager, a claimant of disability benefits under the Social Security Act. Reviewing pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), of the district court held that the Secretary's decision denying benefits to Chicager was supported by substantial evidence. We reverse and remand for the entry of an order directing the Secretary to pay the benefits.

In 1941, when he was nineteen years old, Chicager developed lupus erythematosus, a mysterious and incurable disease marked by degenerative changes in connective tissues and by skin lesions. Because of absences caused by this illness, he was unable to continue working at his job as a grinder. He last met the special earnings requirements for disability insurance coverage specified in § 223(c) of the Act, 42 U.S.C. § 423(c), on March 31, 1944. In 1972 he applied for disability benefits. To be eligible, he had to establish that he became totally disabled while still insured and that his disability continued to within fourteen months of his application.

In 1974 an administrative law judge denied his application. The judge found that he suffered from discord lupus erythematosus and carcinoma of the lower lip and that two fingers of his right hand had been amputated. He also found, however, that proof was lacking that any of these impairments arose prior to March 31, 1944, or that any was of sufficient severity to have prevented him from performing substantial gainful activity for any continuous period since then. The appeals council affirmed, and Chicager sought judicial review. Noting that Chicager had proceeded pro se and that he may not have been afforded the opportunity to develop all favorable medical evidence, the district court remanded the case to the Secretary for further proceedings.

A supplemental hearing was held before a second administrative law judge. That judge commented on the evidence as follows:

The record shows that lupus erythematosus was present in 1941 and the claimant terminated his grinder job in early 1943 because of being hospitalized for his skin disease.

There is substantial evidence in the record to establish these facts. Thus, one of the original deficiencies in the record an absence of proof that lupus developed prior to March 31, 1944 was cured. However, the second administrative law judge also found:

The combination of the claimant's impairments including the pain and limitations imposed thereby were not of sufficient severity to prevent him from engaging in the factory grinder job for a continuous period of 12 months beginning on or prior to March 31, 1944 and continuing up to 14 months prior to filing the application.

If this finding means that Chicager was not disabled from gainful employment prior to March 31, 1944, or that such disability did not continue for at least twelve months, it is not supported by substantial evidence in the record as a whole. The evidence to the contrary is overwhelming. We assume, however, that what the administrative law judge meant was that the pre-March 31, 1944 disability did not continue to within fourteen months of Chicager's application.

As to this, the record establishes that between March 31, 1944, and the early 1960s Chicager was totally supported by his family. Thereafter, he received welfare payments. In the 1960s, however, steroid compounds became available which afforded palliative relief from the inflammation caused by lupus. Less troubled by pain, Chicager undertook on his own initiative a twenty-month course in bookkeeping, offered under the auspices of the Bureau of Vocational Rehabilitation. His repeated efforts to find employment as a bookkeeper were unavailing, however, because of his physical impairments.

In 1966 Chicager finally obtained a job, not as a bookkeeper, but as a truck dispatcher. Despite frequent absences and with the assistance of co-workers, which extended even to such simple tasks as the use of the telephone, he managed to keep this job from September, 1966, to August, 1968. His earnings were never sufficient, however, for him to become currently insured under the disability provisions of the Social Security Act. Nonetheless, it is on this sporadic employment that the second administrative law judge relied to establish that Chicager's pre-March 31, 1944 disability did not continue to within fourteen months of his application.

Disability is defined by the Act as inability to engage in any " substantial gainful activity" by reason of a medically determinable physical impairment lasting for a continuous period of twelve months. 42 U.S.C. § 423(d)(1). The impairment must be of such severity that the applicant cannot, considering his age, education, and work experience, engage in any kind of " substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2). Since the statute does not define "substantial gainful activity," the Secretary has attempted a definition:

Substantial gainful activity defined. Substantial gainful activity refers to work activity that is both substantial and gainful. Substantial work activity involves the performance of significant physical or mental duties, or a combination of both, productive in nature. Gainful work activity is activity for remuneration or profit (or intended for...