Davis v. Califano, 76 C 4660.

• Decision Date: 26 September 1977
• Docket Number: No. 76 C 4660.,76 C 4660.
• Citation: 437 F. Supp. 978
• Parties: Roy L. DAVIS, Plaintiff, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant.
• Court: U.S. District Court — Northern District of Illinois

437 F. Supp. 978

Roy L. DAVIS, Plaintiff, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant.

No. 76 C 4660.

United States District Court, N. D. Illinois, E. D.

September 26, 1977.

Morton J. Rubin, Chicago, Ill., for plaintiff.

Thomas P. Sullivan, U. S. Atty., J. T. Hynes, Asst. U. S. Atty., Chicago, Ill., for defendant.

MEMORANDUM AND ORDER

ROBSON, Senior District Judge.

This cause is before the court on the motion of the defendant Joseph Califano, Jr., the Secretary of Health, Education and Welfare (hereinafter Secretary) for summary judgment. For the reasons hereinafter stated, the motion shall be denied and the case shall be remanded to the Secretary.

Plaintiff Roy Davis has brought this action to review and set aside a final decision of the Secretary denying his application for permanent disability benefits under 42 U.S.C. § 423. The jurisdiction of this court is invoked under 42 U.S.C. § 405(g) and is not disputed.¹

On April 22, 1977, the Secretary filed his answer to plaintiff's complaint. Defendant attached, as required by statute, a certified copy of the entire administrative proceedings relating to plaintiff's application for disability benefits. The court has also received the motion for summary judgment and memorandum supporting, answering, and replying to the motion.

The statute providing for judicial review of the disability determination made here, 42 U.S.C. § 405(g), precludes an award of summary judgment. Johnson v. Weinberger, 388 F.Supp. 628, 629 (D.Colo.1974); Torphy v. Weinberger, 384 F.Supp. 1117, 1119 (E.D.Wis.1974). In contrast to the summary judgment procedure of Fed.R. Civ.P. 56 allowing new factual evidence to be submitted to the court by way of affidavits, section 405(g) review is limited to a determination "upon the pleadings and transcript of the record." Nonetheless, because the entire administrative record is before the court, the case is ripe for review. Accordingly, the court will treat defendant's motion for summary judgment as a motion for an order affirming the decision of the Secretary. Plaintiff's complaint and opposition to the summary judgment motion in effect seek an order reversing the decision of the Secretary or remanding the case to the Secretary for the taking of additional evidence. Brown v. Secretary of HEW, 403 F.Supp. 938, 940 (E.D.Wis.1975); Johnson v. Weinberger, 388 F.Supp. 628, 629 (D.Colo.1974).

Plaintiff is a fifty-one year old married man with a family. He has not had any educational or occupational training beyond the fourth grade. His reading and writing abilities are severely limited. His entire work experience has consisted of farm manual labor before the age of twenty-one and for a short period in the 1950's as well as manual labor in a foundry in Michigan City, Indiana.

The medical evidence and the plaintiff's testimony before the administrative law judge reveal that he was hospitalized and received treatment for a collapsed lung, chest pains, hypertension, and severe arthritic pains in the knees. His chest condition has been diagnosed as bronchial asthma or chronic bronchitis with a history of pneumothorax. Since being first hospitalized for the above conditions in 1974, plaintiff has on several occasions attempted to return to his foundry job. He has, however, been unable to do so for any significant period of time because of his physical condition. In November, 1975, plaintiff was directed by his physician not to do heavy or manual labor precluding him from continuing in his job at the foundry.

Plaintiff testified at the hearing before the administrative law judge that he is severely limited even in working around the house feeling tired, weak, and painful after only a short time. He also stated that he suffers shortness of breath even while sitting still. Further, he is unable to walk more than a block without severe pains because of a severe arthritic condition.

The vocational witness, Dr. William G. Fischer, testified that plaintiff is precluded from performing his prior work at the foundry. Nonetheless, he found, relying on the Dictionary of Occupational Titles, that plaintiff could engage in limited sedentary work. The administrative law judge concurred in the opinion of the vocational witness and found that plaintiff was not entitled to a disability determination.

Subsequently, plaintiff filed an appeal of the decision with the Appeals Council of the Social Security Administration. On October 25, 1976, plaintiff sent a letter to the Appeals Council requesting more time before the Council's determination for the taking of additional medical tests. The basis of the request was an attached letter of Dr. Martin Shobris suggesting an additional medical work-up of the plaintiff, including a lung diffusion test and a blood gas determination, requiring about fifty or sixty days to complete in order to determine the extent of disability. Dr. Shobris further expressed the opinion that his review of the medical records showed that plaintiff was totally disabled. The Appeals Council summarily affirmed the decision of the administrative law judge without responding to plaintiff's request.

Plaintiff applied for disability benefits on September 18, 1975, completed the necessary forms, and made all available appeals. The Secretary, adopting the decision of the administrative law judge dated July 15, 1976, found that plaintiff is not under a disability as that term is defined in 42 U.S.C. § 423(d). This action for review followed....