Bullard v. Califano, 77-4014-CV-C.

• Decision Date: 30 January 1978
• Docket Number: No. 77-4014-CV-C.,77-4014-CV-C.
• Citation: 443 F. Supp. 902
• Parties: Clarence E. BULLARD, Plaintiff, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant.
• Court: U.S. District Court — Western District of Missouri

443 F. Supp. 902

Clarence E. BULLARD, Plaintiff, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant.

No. 77-4014-CV-C.

United States District Court, W. D. Missouri, W. D.

January 30, 1978.

COPYRIGHT MATERIAL OMITTED

Timothy C. Harlan, Boonville, Mo., for plaintiff.

Stuart J. Newman, Asst. U. S. Atty., Kansas City, Mo., for defendant.

ORDER

ELMO B. HUNTER, District Judge.

Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for review of a decision by the defendant Secretary of Health, Education, and Welfare denying plaintiff's application for disability and supplemental security income benefits.

Plaintiff filed his claim for Disability Insurance Benefits on June 5, 1975 (Tr. 57-60). The Bureau of Disability Insurance, Division of Initial Claims, denied plaintiff's claim on July 16, 1975 and notified plaintiff of his right to request a reconsideration of this determination within six months of that date (Tr. 62). Plaintiff filed his request for reconsideration on October 6, 1975 (Tr. 64), but, on November 4, 1975, the Bureau of Disability Insurance, Division of Reconsideration, affirmed the denial of plaintiff's claim and notified plaintiff of his right to have a hearing before an Administrative Law Judge of the Bureau of Hearings and Appeals (Tr. 67).

Plaintiff and his wife filed their application for Supplemental Security Income on June 5, 1975 (Tr. 68-71). On July 16, 1975, this application was denied (Tr. 72-73). On October 6, 1975, plaintiff filed his Request for Reconsideration of this denial and, on November 4, 1975, this denial was affirmed and plaintiff was notified of his right to request a hearing before an Administrative Law Judge of the Bureau of Hearings and Appeals (Tr. 75-76).

On June 15, 1976, a hearing was held before an Administrative Law Judge of the Bureau of Hearings and Appeals for purposes of considering both the claim for Disability Insurance Benefits and for Supplemental Security Income. On July 14, 1976, the Administrative Law Judge made the following decision at Tr. 13:

It is the decision of the administrative law judge that based upon the applications filed on June 5, 1975, the claimant is not entitled to either a period of disability or disability insurance benefits under Section 216(i) and 223(a) of the Social Security Act, as amended.

It is the further decision of the administrative law judge that the claimant is not disabled within the meaning of the supplemental security income insurance Law, Title XVI, of the Act.

On this same date, plaintiff was notified of his right to have the Administrative Law Judge's decision reviewed by the Appeals Council and of the fact that plaintiff must request such a review, if he desired one, within sixty days of July 14, 1976 (Tr. 9). On November 24, 1976, the Appeals Council affirmed the decision of the Administrative Law Judge and notified plaintiff of his right to seek judicial review within sixty days (Tr. 3). Plaintiff thereupon commenced this action on January 21, 1977.

I STANDARDS OF REVIEW

In reviewing the determination of the Secretary of Health, Education, and Welfare pertaining to a Social Security claim, "the findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . ." 42 U.S.C. § 405(g). In applying this standard of review to a particular case, a good deal of deference must necessarily be given the findings of the Secretary. As stated in Taylor v. Richardson, 354 F.Supp. 13, 17 (M.D.La.1973):

The District Court's role in the review of the Secretary's decision is limited. The Secretary is to resolve conflicts in evidence and inferences therefrom which may exist. . . . A review of the Secretary's decision by a Federal District Court is not a trial de novo. The function of this Court is to decide whether or not there is substantial evidence in the record as a whole to support the Secretary's findings. . . . If the final decision is supported by substantial evidence it must be affirmed even if there is also substantial evidence in the record which might have supported a finding in favor of the claimant.

Despite the deferential treatment accorded the Secretary's findings of fact, the reviewing Court must do much more than merely "rubber stamp" the Secretary's decision. In Byrd v. Richardson, 362 F.Supp. 957, 959 (D.S.C.1973), the Court stated:

This Court may not try the case de novo and substitute its findings for those of the Secretary. Flack v. Cohen, 413 F.2d 278 (4th Cir. 1969). This does not mean however that the findings of the administrative agency must be blindly accepted. On the contrary, the statutorily-granted right of review contemplates more than an uncritical rubber stamping of the administrative action. Flack mandates a critical and searching examination of the record, and the setting aside of the Secretary's decision when necessary to insure a result consistent with congressional intent and elemental fairness.

Clearly, in applying the substantial evidence standard of review, the reviewing Court must consider the whole record, including all evidence which fairly detracts from the findings made by the Secretary. As stated in Floyd v. Finch, 441 F.2d 73, 76 (6th Cir. 1971), quoted with approval in Garrett v. Richardson, 471 F.2d 598, 604 (8th Cir. 1972):

It used to be easy enough for an appellate court to affirm an administrative agency on the ground that the findings were supported "by substantial evidence," if it could find just a trace of evidence to support them. But that is not the case anymore. Congress grew critical of such affirmances which ignored conflicting evidence and, in turn, brought about harsh criticism of the courts for such decisions on the ground that cases were affirmed merely because the appellate court could find evidence in the record which, viewed in isolation, substantiated a Board's findings.

The Supreme Court has defined "substantial evidence" as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842, 852 (1971). The Fourth Circuit, in Laws v. Celebrezze, 368 F.2d 640, 642 (1966) has defined the standard thus:

It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is "substantial evidence."

If there is substantial evidence to support the Secretary's decision, then this Court's inquiry must terminate. "It is not within the province of this court to determine the weight of the evidence; nor is it our function to substitute our judgment for that of the Secretary if his decision is supported by substantial evidence." Laws v. Celebrezze, supra, at 642.

The substantial evidence rule is but one of many standards which guides this Court in reviewing a decision of the Secretary in a case such as this. The decisions have summarized these many standards thus:

(1) the claimant has the burden of establishing his claim;

(2) the Act is remedial and is to be construed liberally;

(3) the Secretary's findings and the reasonable inferences drawn from them are conclusive if they are supported by substantial evidence;

(4) substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion;

(5) in applying the substantial evidence test, the reviewing court must view the record as a whole, considering both the evidence which supports the Secretary's findings and that which detracts from those findings; the reviewing court is not, however, to weigh the evidence;

(6) the determination of the presence of substantial evidence is to be made on a case-to-case basis;

(7) where the evidence is conflicting it is for the Appeals Council, on behalf of the Secretary, to resolve those conflicts (8) the statutory definition of disability imposes a three-fold requirement:

(a) that there be a 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,

(b) that there be an inability to engage in any substantial gainful activity, and

(c) that the inability be by reason of the impairment;

(9) "substantial gainful activity" is that which is both substantial and gainful and within the claimant's capability, realistically judged by his education, training and experience;

(10) the emphasis is on the particular claimant's capabilities and on what is reasonably possible, not on what is conceivable; and

(11) it is not the duty or the burden of the Secretary to find a specific employer and job for the claimant but, instead, some effort and some ingenuity within the range of the claimant's capacity remains for him to exercise. See Russell v. Secretary of Health, Education and Welfare, 540 F.2d 353, 356-57 (8th Cir. 1976).

With these general standards in mind, a review of the record in this case is in order.

II EVIDENCE PRESENTED IN THE ADMINISTRATIVE PROCEEDINGS

The basic facts are not in dispute. Plaintiff was born on March 22, 1926 (Tr. 31) and has been married to his present wife for just over 30 years (Tr. 32). He has a tenth grade education (Tr. 33). He was in the military service from 1944 to 1946, but received no particular training during this period (Tr. 34). The only work he has ever pursued is house painting, which he has done for approximately 30 years (Tr. 34).

On May 13, 1975, plaintiff fell off his stepladder while painting, falling some ten or twelve feet onto concrete (Tr. 39). He was initially taken to Cooper County Hospital but was then transferred to the Veterans Hospital in Columbia, Missouri, where he remained for about nine days (Tr. 39-40). According to plaintiff, when he fell off the stepladder, "the bottom of my foot hit the concrete. And, then, the rubber...