Dobrowolsky v. Califano

• Decision Date: 04 September 1979
• Docket Number: No. 79-1013,79-1013
• Citation: 606 F.2d 403
• Parties: George DOBROWOLSKY, Appellant, v. Joseph A. CALIFANO, Jr., Secretary, Health, Education, and Welfare, Appellee. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 403

606 F.2d 403

George DOBROWOLSKY, Appellant, v. Joseph A. CALIFANO, Jr., Secretary, Health, Education, and Welfare, Appellee.

No. 79-1013.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit Rule 12(6) Sept. 4, 1979.

Decided Oct. 3, 1979.

J. Barnard Nobel, Bucks County Legal Aid Society, Langhorne, Pa., for appellant.

Peter F. Vaira, U. S. Atty., Gary Tilles, Asst. U. S. Atty., Stephanie W. Naidoff, Regional Atty., Thomas A. Dougherty, Jr., Asst. Regional Atty., Dept. of Health, Education and Welfare, Philadelphia, Pa., for appellee.

Before ADAMS, HUNTER and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

ADAMS, Circuit Judge.

On this appeal, George Dobrowolsky challenges the conclusion of the Department of Health, Education and Welfare (HEW) that he is not disabled within the meaning of 42 U.S.C. § 423(d) (1976). ¹ Dobrowolsky's claim for disability benefits was denied by an Administrative Law Judge (ALJ) in an opinion after a hearing at which Dobrowolsky waived his right to counsel. The ruling of the ALJ became the final decision of the Secretary of HEW when it was approved by HEW's Appeals Council on Dobrowolsky's request for review. ² Dobrowolsky then filed suit in the district court ³ seeking reversal of HEW's decision or a remand to the agency for an additional hearing in order that further evidence could be developed. Both parties moved for summary judgment, and the district court granted judgment in favor of HEW. For the reasons stated below we vacate that judgment, and direct that the case be remanded to the agency for a further hearing.

I. FACTS

Dobrowolsky is 52 years old and has worked as a meat cutter or as supervisor of a meat department continuously since leaving the Navy in 1946. From 1952 to 1975, his earnings were "covered" by the Social Security Administration's disability insurance program, and his last 15 years of work were for the same employer.

In late 1971, Dobrowolsky was treated by his physician for hypertension and chest pains, and subsequently was hospitalized under a diagnosis of ischemia and coronary insufficiency. Following a fall at his home and an automobile accident in 1974, he was again hospitalized and could not work for several months. After his release from the hospital and until December 1975, Dobrowolsky attempted to work, but could do so only sporadically because of severe headaches and pains in his neck, arms, shoulders, and lower back. All these ailments were confirmed by his physician, who ascertained that he was suffering from degenerative disc disease, lumbosacral strain, cervical strain, sciatic neuritis, and essential hypertension.

No physician testified at the hearing before the ALJ, but two medical reports were introduced: one from Dobrowolsky's personal physician and the other from a physician who made a consultative orthopedic examination upon referral by the agency. Both reports characterized the claimant as "disabled." The consulting physician limited his opinion to stating that Dobrowolsky was "disabled from his previous occupation," while his personal physician concluded more generally that "he is unable to work."

In addition, Dobrowolsky testified at the hearing that he cannot stand for more than an hour or sit for more than one or two hours without pain, that he cannot bend without pain, that he has difficulty climbing stairs, that he suffers sharp pain when lifting his arms, that he can walk without pain only for a few blocks, and that he rarely gets as much as four hours of sleep. Most of Dobrowolsky's testimony of subjective pain was corroborated by the medical reports, and none was contradicted by any medical evidence.

Against this formidable array of evidence as to physical disability, and standing as the sole basis for the ALJ's denial of benefits, is the conclusion expressed by a vocational expert. After attending the hearing and reviewing the medical reports, the vocational expert testified that Dobrowolsky could perform certain sedentary jobs that exist in large numbers both in the geographic area where claimant resides and in the national economy. Examples of the jobs that the vocational expert said Dobrowolsky could perform were "security guard at a building entrance, attendant at a self-parking lot, bench assembler in electronics, toys, appliances or leather goods, inspector-gauger, food processor in a food processing plant and vegetable preparer in a restaurant." ⁴

Although unrepresented at the hearing, Dobrowolsky later obtained an attorney and petitioned the Appeals Council of the Social Security Administration to remand this case to the ALJ for consideration of additional evidence regarding the claimant's condition. On appeal to us from the summary judgment entered against him by the district court, Dobrowolsky asserts that the district court judgment should be reversed as a matter of law, and summary judgment entered in his favor, because the vocational expert's testimony did not constitute substantial evidence so as to rebut the clear medical testimony of his disability. In the alternative, he requests a remand to the agency for a new hearing.

II. STANDARD FOR JUDICIAL REVIEW

Any findings of fact by the Secretary must be accepted as conclusive by a reviewing court "if supported by substantial evidence." 42 U.S.C. § 405(g) (1976). "Substantial evidence" has been defined to mean " '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 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938).

There has been much confusing discussion of burdens of proof in disability proceedings under the Social Security Act. It is settled, however, that the claimant must carry the initial burden of demonstrating by medical evidence that he is unable to return to his former occupation. ⁵ The burden then devolving on the Secretary as to the existence of substantial gainful employment the claimant could perform has been variously described as a burden of proof, ⁶ a burden "to go forward and produce substantial evidence," ⁷ a burden "to show," ⁸ or simply a burden of production, with no ultimate shifting of the burden of proof. ⁹ As the Court of Appeals for the First Circuit has stated, the nature of these proceedings resists attempts at strict conceptualization, and we eschew such discussion as less than enlightening:

(The) responsibilities (of the claimant and the Secretary) resist translation into absolutes, especially because social security proceedings are not strictly adversarial. For this reason we see no point in deciding abstractly whether the "burden of proof" at a (disability) proceeding is on the claimant or Secretary. Both have responsibilities. The question in each case is whether the Secretary's decision was supported by substantial evidence . . . .

Miranda v. Secretary of HEW, 514 F.2d 996, 998 (1st Cir. 1975).

This Court has repeatedly emphasized that the special nature of proceedings for disability benefits dictates extra care on the part of the agency in developing an administrative record and in explicitly weighing all evidence. ¹⁰ We have pointed out that " '(a) hearing on an application for benefits is not an adversary proceeding. The applicant is confronted with no adversary in the usual sense of that term. The Social Security Administration provides an applicant with assistance to prove his claim.' " ¹¹

The cases demonstrate that, consistent with the legislative purpose, courts have mandated that leniency be shown in establishing the claimant's disability, and that the Secretary's responsibility to rebut it be strictly construed. We declared in Hess that "(a)lthough the burden is upon the claimant to prove his disability, due regard for the beneficent purposes of the legislation requires that a more tolerant standard be used in this administrative proceeding than is applicable in a typical suit in a court of record where the adversary system prevails." 497 F.2d at 840. In a black lung case in which the standard of review is identical to review of disability benefits, we quoted approvingly from a decision of the Fourth Circuit Court of Appeals:

"(U)nless the Secretary has analyzed all evidence and has sufficiently explained the weight he has given to obviously probative exhibits, to say that his decision is supported by substantial evidence approaches an abdication of the court's 'duty to scrutinize the record as a whole to determine whether the conclusions reached are rational.' " ¹²

Thus, a reviewing court may remand a case to the Secretary for good cause, "where relevant, probative and available evidence was not explicitly weighed in arriving at a decision on the plaintiff's claim for disability benefits." Saldana v. Weinberger, 421 F.Supp. 1127, 1131 (E.D.Pa.1976) (Higginbotham, J.); See Cutler v. Weinberger, 516 F.2d 1282, 1285 (2d Cir. 1975).

III. LACK OF COUNSEL AND THE AGENCY'S DUTY TO DEVELOP THE RECORD WITH SPECIAL CARE

When the claimant has been informed of his right to counsel before an administrative hearing and knowingly waives it, his lack of representation is not, of itself, cause for remand. See Hess, supra, 497 F.2d at 840 n.4. Lack of counsel is sufficient cause for remand only if supported by a showing of clear prejudice or unfairness at the administrative hearing. Domozik v. Cohen, 413 F.2d 5, 9 (3d Cir. 1969). Our examination of the record in light of the heightened level of care and the responsibility of the ALJ to assume a more active role when the claimant is unrepresented, ¹³ convinces us that Dobrowolsky was prejudiced by lack of counsel and the passivity of the ALJ as developer of evidence in two critical respects:

First, it may be that, with properly developed evidence, Dobrowolsky comes within one of the per se qualifications for disability under the regulations. "Where an...