Davis v. Mathews

• Decision Date: 17 May 1978
• Docket Number: Civ. No. S-76-325 TJM.
• Citation: 450 F. Supp. 308
• Parties: Arnold L. DAVIS, Plaintiff, v. David MATHEWS, Defendant.
• Court: U.S. District Court — Eastern District of California

450 F. Supp. 308

Arnold L. DAVIS, Plaintiff, v. David MATHEWS, Defendant.

Civ. No. S-76-325 TJM.

United States District Court, E. D. California.

January 13, 1978.

Opinion after Briefing March 20, 1978.

On Motion for Reconsideration May 17, 1978.

Herman Sillas, U. S. Atty., Richard W. Nichols, Chief Asst. U. S. Atty., Sacramento, Cal., for defendant.

Frank A. Ury, Vallejo, Cal., for plaintiff.

MEMORANDUM

MacBRIDE, Chief Judge.

This complaint for review of decisions by the Appeals Council of the Social Security Administration and of the Administrative Law Judge denying plaintiff's application for disability benefits was filed on June 14, 1976. Plaintiff moved for remand to the Secretary of HEW and the Social Security Administration on January 18, 1977, for further hearings on plaintiff's disability, his eligibility for benefits and the validity and propriety of the termination of his benefits. Defendant made a cross motion for summary judgment on February 8, 1977. On February 22, 1977, pursuant to 28 U.S.C. § 631 et seq., this court referred both motions to Magistrate Esther Mix for hearing. On July 27, 1977, Magistrate Mix filed Proposed Findings and Recommendations, recommending that defendant's motion for summary judgment be granted and plaintiff's motion for remand be denied. Plaintiff filed objections to the Proposed Findings and Recommendations on August 8, 1977.

Review of the magistrate's action is governed by 28 U.S.C. § 636(b)(1)(C) which provides in part:

A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions.

This court must now undertake de novo review of the portions of the magistrate's findings and recommendations to which plaintiff has objected. Plaintiff urges that the Administrative Law Judge abused his discretion in permitting an "amateur" to testify as a vocational expert and that the magistrate erred in finding that there was no abuse of discretion. The testimony at issue was that plaintiff was qualified to perform work which existed in significant numbers in the region where plaintiff lives or in several regions of the country. If the plaintiff is, in fact, qualified to perform such work, then under 42 U.S.C. § 423(d)(2)(A), plaintiff is not disabled.

(1) Background

Plaintiff applied for disability benefits under 42 U.S.C. § 423 and for a period of disability under 42 U.S.C. § 416(i) on June 20, 1973. Section 416(i)(1) provides that the provisions of section 423(d)(2)(A) and (3) through (5) shall be applied to determine whether a person is under a disability for purposes of section 416(i). Section 423(d)(2)(A) provides in part:

an individual . . . shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence . . . "work which exists in the national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.

Plaintiff testified at a hearing on June 12, 1974 before Hearing Examiner Donald S. Manion that he was born July 25, 1928 and had an eighth grade education. It appears that plaintiff was originally injured in a fall on the job in 1969; the injury to his knee required surgery and, although improved, he still suffers some impairment. In late 1972, plaintiff was injured in an automobile accident which caused contusions to his head and cervical strain. Headaches and neck pain from this accident have apparently continued to occur. Medical records in the file indicate that plaintiff is mildly retarded with an I.Q. of 76 and has suffered from a schizophrenic episode which required hospitalization in 1967.

The first decision of the Hearing Examiner on December 12, 1974 states:

while it is reasonable to infer that Mr. Davis may be precluded as a result of his complaints from again engaging in the type of construction labor which he described, it seems evident that he yet possesses the physical ability to resume work analogous to that which he pursued at the Benecia, California arsenal, viz., that of light packaging, a vocation within his experience and mental capabilities that would not place undue stress upon those areas of his anatomy or physiology in connection with which he has continuing symptomatology.

The Hearing Examiner determined that plaintiff had

failed to furnish such evidence as would demonstrate by medically acceptable clinical and laboratory diagnostic techniques the existence in him of such a physical or mental impairment that would prevent him from engaging in all substantial gainful activity.

Plaintiff objected to the first decision of the Hearing Examiner and the Appeals Council vacated that decision on May 16, 1975. The Appeals Council decision states:

the record in this case does not contain sufficient information for a decision as to whether the claimant meets the requirements of the Act for purposes of establishing entitlement to a period of disability and to disability insurance benefits.

The Appeals Council remanded the case to the Hearing Examiner for additional evidence to be taken and for

the testimony of a vocational expert with respect to the types of work activity, if any, for which the claimant is qualified on the basis of his education, training, and work experience.

At the hearing on remand, the Hearing Examiner received in evidence a medical report on the plaintiff, a resume from Lewis G. Carpenter, Jr., and plaintiff's objection to Dr. Carpenter's testimony as a vocational expert. Dr. Carpenter had been requested to testify by the Hearing Examiner, and no other vocational expert testified. After the hearing, the Examiner accepted into evidence a letter from Dr. Lloyd Meadow, a Professor of Rehabilitation Counseling and a licensed psychologist in California.

On January 28, 1976, the Hearing Examiner decided for a second time that plaintiff was not entitled to disability benefits, based in large part on Dr. Carpenter's testimony. The decision states:

Dr. Carpenter expressed his professional expert opinion that an individual of claimant's age, education, vocational experience and impaired to the degree that Mr. Davis had been shown to be impaired could yet engage in substantial gainful activity in vegetable preparation, as a coilwinder in the electrical industries, as a hand packer, as a sorter or as an assembler.

Plaintiff sought review of this decision by the Appeals Council, renewing his objection to the use of Dr. Carpenter as a vocational expert. On May 10, 1976, the Appeals Council affirmed the decision of the Hearing Examiner.

(2) Dr. Carpenter's Qualifications

Dr. Carpenter's resume which appears in the record reveals that, as of October 29, 1970, he was a Senior Psychologist at Napa State Hospital where he had been employed since 1953. The following description of his duties in that position is in the resume:

Coordinator of industrial therapy program for hospital wide patient vocational placement and training. Development of integrated programs, maintain liaison between wards and hospital industries, devise training programs, develop training & employment opportunities with outside employers. Teaching psychiatric residents, student nurses, hospital program design and development. Consultant to special programs — Hospital improvement Project, Voc. Rehab., Dept. Mental Hygiene. Diagnosis, treatment, research.

Dr. Carpenter's testimony reveals that he had received an A.B. and M.A. in psychology from Stanford University and a PhD in psychology from the University of California. He stated that he was employed as a psychologist at "Memphis (PHONETIC) State Hospital" where he had been employed since 1950. It appears that "Memphis" is an error and that Dr. Carpenter is employed at Napa State Hospital. Dr. Carpenter stated that his duties at the hospital involved being

in charge of the ward of perhaps 50 male, and female patients who are predominantly—predominantly have limitations, mental or emotional fashion (PHONETIC), although they have a wide variety of physical problems as well. Directly I interview these individuals for diagnostic, and treatment purposes. I perform diagnostic, and therapeutic work with other patients throughout the hospital. I place individuals in hospital industrial settings from this ward, and from other wards. I mediate situations involving a necessity for training, vocational, and academic training for patients in the various facilities surrounding the area. This includes also on the job training for individuals who are suitable for being placed in job training outside the hospital. And also occasionally direct placement in job situations.

Until two years previously, Dr. Carpenter had been head of the industrial therapy program for the whole hospital. Dr. Carpenter defined "industrial therapy" as "patient involvement in hospital industries . . . which compare with those in a small community." These jobs include lawn and grounds work, kitchen work, janitorial work, painting, electrical and clerical work. Dr. Carpenter testified that he "occasionally, but not frequently," placed patients in jobs outside the hospital.

Prior to his employment at Napa State Hospital in 1950, Dr. Carpenter worked in two capacities...