Ware v. Schweiker

• Decision Date: 24 July 1981
• Docket Number: No. 80-2273,80-2273
• Citation: 651 F.2d 408
• Parties: Carolina WARE, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant- Appellee. Summary Calendar. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 408

651 F.2d 408

Carolina WARE, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant- Appellee.

No. 80-2273

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Unit A

July 24, 1981.

Rehearing Denied Sept. 18, 1981.

Locke, Purnell, Boren, Laney & Neely, Harriet E. Miers, Dallas, Tex., for plaintiff-appellant.

Martha Joe Stroud, Asst. U.S. Atty., John M. Stokes, Regional Atty., Mary K. Biester, Asst. Regional Atty., Dallas, Tex., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GEE, RUBIN and RANDALL, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

Now ably represented by volunteer private counsel, obtained through a community legal aid service, an applicant for Social Security Disability Benefits and for Social Security Supplemental Income seeks reversal of the Secretary's decision, made after a hearing at which she was not represented, denying her those benefits. In the alternative, she requests a remand to the administrative law judge (ALJ) for further proceedings. Like many who appeal negative Social Security decisions, Mrs. Ware is now undeniably ill and may indeed be unable to work, but, fettered by the bonds that the Act places on judicial review, we conclude that the district court properly denied her relief and we affirm the judgment.

Mrs. Caroline Ware contends that she became unable to work on January 3, 1975, at the age of 32. She has a ninth grade education and has worked principally as a nurse's aide. She last met the insured status requirement on March 31, 1977. Six of her children live with her and are dependent on her. She is indigent and obtained counsel through Dallas Legal Services referral program.

Mrs. Ware made her application without counsel's help. After the claim was denied, she requested a hearing. The ALJ compiled her medical records. At the hearing, held on August 4, 1978, she was informed of her right to counsel. She said that she would proceed without a lawyer. At the outset of the trial testimony, the ALJ, after being informed that Mrs. Ware had undergone major surgery several days before, ¹ asked her if she would like to postpone the hearing. She replied that she was worried about her bills, and that she did not want to delay matters.

Mrs. Ware testified that she suffered constant pain and was taking codeine. Although she testified that her doctor had told her not to drive, no medical testimony was offered at the hearing. ² The hearing lasted 14 minutes.

The ALJ denied her all benefits. His findings do not refer to her subjective complaints of pain but recite that, taken as a whole, "the medical evidence does not indicate that the claimant has impairment or a combination of impairments of such a degree of severity as to preclude her from her usual work activity."

The administrative process is often, and frequently properly, criticized because it moves too slowly. Now that Mrs. Ware has counsel, the objection is made that "at certain junctures" the system moved too quickly for her, that it was too complex for her to understand, and that she was overwhelmed by its difficulty. Counsel also contends that Mrs. Ware was prejudiced by her earlier lack of counsel.

II.

The Social Security Act places the burden of establishing disability on the claimant. Turner v. Califano, 563 F.2d 669 (5th Cir. 1977); Kirkland v. Weinberger, 480 F.2d 46 (5th Cir.), cert. denied, 414 U.S. 913, 94 S.Ct. 255, 38 L.Ed.2d 155 (1973). She must show that she was disabled on or before the last day of her insured status. Demandre v. Califano, 591 F.2d 1088 (5th Cir. 1979). It is the duty of the Secretary to decide whether she has thus proved her right to benefits. When we review his decision, we are limited to determining whether there is substantial evidence in the record considered as a whole to support his finding. 42 U.S.C. § 405(g). We may not reevaluate the evidence or substitute our judgment for his. Goodman v. Richardson, 448 F.2d 388 (5th Cir. 1971). We do not, of course, act as automatons. We must scrutinize the record as a whole, Lewis v. Weinberger, 515 F.2d 584, 586-87 (5th Cir. 1975), and base our judgment on a fair examination of all that it contains.

There can be no doubt that Mrs. Ware failed to adduce medical evidence of disability. The medical evidence in the record amply supports the ALJ's findings. One year after the date her alleged disability began, Mrs. Ware saw a doctor for injuries sustained in an automobile accident. She gave no history of previous illness or injuries except a tubal ligation and appendectomy performed in November 1974. On January 26, 1976, she was hospitalized, complaining of pain in the neck, back and low back. She was treated with physical therapy but refused further treatment and was dismissed against the doctor's advice. She was again hospitalized in July 1976 and treated for pyelonephritis and bacturemia. At this time she again complained of low back pain. She made satisfactory progress and was discharged on medication.

Over a year later, in September 1977, ³ Mrs. Ware received emergency room treatment for back pain, was given medication and hot compresses, and released. She again sought emergency room treatment for the same complaint and headaches in December 1977.

In January 1978, an internist examined Mrs. Ware for complaints of pain in the lower back and abdomen. After a number of diagnostic tests, he concluded that she could walk, sit, or stand, for eight hours a day; lift up to 25 pounds frequently; was not restricted in the use of her hands or feet; and could frequently bend, stoop, crawl and climb. He found her to be moderately obese with good musculation. An orthopedic surgeon who examined her in April 1978, found it difficult to explain her symptoms as caused by any one problem; his diagnosis was probable mild lumbar strain. Later, in July 1978, a hysterectomy and other operations were performed on Mrs. Ware. There is nothing to indicate that the medical conditions for which this operation was performed existed on March 31, 1977. This evidence, viewed as a whole, constitutes substantial evidence that Mrs. Ware was not disabled.

III.

We turn then to the argument that the ALJ improperly failed to consider Mrs. Ware's subjective complaints of pain. To be entitled either to Social Security disability insurance benefits, 42 U.S.C. § 423, or supplemental income benefits, 42 U.S.C. § 1382, a claimant must establish that she is disabled. The statutory test for each of these benefits is the same. The Social Security claimant must show that she is unable "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 twelve months." 42 U.S.C. § 423(d). There are slight differences in the supplemental income benefits text, 42 U.S.C. § 1382c, but those do not, for present purposes, even hint at a different meaning. A "physical or mental impairment" is described as "an impairment which results from anatomical, physiological or psychological abnormalities which are demonstrable by acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3) and § 1382c(a)(3)(C).

The statute requires the Secretary to consider pain and other subjective responses. However difficult it may be to evaluate these responses by physiological and neurological tests, however variable the intensity of individual reaction to the same stimuli, to the person who experiences discomfort, pain, anxiety, depression or other emotional reactions, the distress is real; it can and does affect that person's capacity to work. The statute requires, however, that such subjective symptoms be linked to a "medically determinable impairment." Thus, pain resulting from a "medically determinable impairment," even when its existence is unsupported by objective medical evidence, may of itself be so intense as to cause disability. Western v. Harris, 633 F.2d 1204 (5th Cir. 1981); Gaultney v. Weinberger, 505 F.2d 943 (5th Cir. 1974). Pain not so severe as of itself to render a person unable to engage in any substantial gainful activity should be considered with other results of a "medically determinable impairment" to determine whether a claimant is disabled.

The ALJ is required to consider these symptoms of the claimant, as well as other objective evidence such as medical opinions and the like. DePaepe v. Richardson, 464 F.2d 92 (5th Cir. 1972). The subjective feelings of pain may be introduced either through testimony by the claimant or friends, family, and co-workers. Such testimony cannot merely be disregarded. Thorne v. Weinberger, 530 F.2d 580, 583 (4th Cir. 1976); DePaepe v. Richardson, 464 F.2d 92 (5th Cir. 1972). See Epps v. Harris, 624 F.2d 1267 (5th Cir. 1980); Laffoon v. Califano, 558 F.2d 253 (5th Cir. 1977). An ALJ need not, however, believe a claimant's testimony regarding pain or other symptoms. Fortenberry v. Harris, 612 F.2d 947 (5th Cir. 1980); Gaultney v. Weinberger, 505 F.2d 943, 945 (5th Cir. 1974); See also Reyes Robles v. Finch, 409 F.2d 84, 87 (1st Cir. 1969).

Nowhere in his decision does the ALJ mention the principle that subjective complaints of pain can be a disabling condition. Nor does the ALJ mention Mrs. Ware's subjective complaints. He should have done so.

Nevertheless, having read the transcript of her testimony, the medical evidence considered, and the proffer later made by counsel, we believe that a remand for express findings would be a wasteful corrective exercise. At the time of the hearing, Mrs. Ware was suffering from the results of her operation nine days before. Save her own testimony that she had some pain before the operation and that it had worsened, she offered no medical evidence that the pain resulted from a medically...