Freeman v. Harris, Civ. A. No. 79-1624.

• Decision Date: 13 February 1981
• Docket Number: Civ. A. No. 79-1624.
• Citation: 509 F. Supp. 96
• Court: U.S. District Court — District of South Carolina
• Parties: John W. FREEMAN, Plaintiff, v. Patricia Roberts HARRIS, Secretary of Health and Human Services, Defendant.

509 F. Supp. 96

John W. FREEMAN, Plaintiff, v. Patricia Roberts HARRIS, Secretary of Health and Human Services, Defendant.

Civ. A. No. 79-1624.

United States District Court, D. South Carolina, Greenville Division.

February 13, 1981.

Wyatt Saunders, Laurens, S. C., for plaintiff.

Thomas E. Lydon, Jr., U. S. Atty., Columbia, S. C., for defendant.

ORDER

BLATT, District Judge.

This matter is before the court, pursuant to 42 U.S.C. § 405(g), for review of a final decision of the Secretary of Health, Education, and Welfare. The record includes a report and recommendation of the United States Magistrate made in accordance with the local rule of this District concerning reference of social security cases under 28 U.S.C. § 636(b)(1)(B). In the Matter of: Social Security Cases (Sept. 5, 1979) (local rule); see, e. g., Weber v. Secretary of Health, Education and Welfare, 503 F.2d 1049 (9th Cir. 1974), aff'd sub nom., Mathew v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). As provided by 28 U.S.C. § 636(b), the court is under an obligation to make a de novo review of any portion of the magistrate's recommendation to which specific objection is made, Orand v. United States, 602 F.2d 207 (9th Cir. 1979); United States v. Raddatz, 592 F.2d 976 (7th Cir. 1979), and the court may accept, reject, or modify the recommendation, or the matter may be recommitted to the magistrate with additional instructions. See Mathew v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). "The district judge is free to follow the magistrate's report or wholly to ignore it, or, if he is not satisfied, he may conduct the review in whole or in part anew. The authority — and the responsibility — to make an informed, final determination ... remains with the judge." Id. at 271, 96 S.Ct. at 554. Thus, while the level of scrutiny entailed by the district court's review of the report and recommendation of the magistrate depends on whether objections thereto have been filed, e. g., Webb v. Califano, 468 F.Supp. 825 (E.D.Cal.1979), in either case "the district judge is free, after review, to accept, reject or modify any of the magistrate's findings or recommendations." United States ex rel. Henderson v. Brierley, 468 F.2d 1193 (3d Cir. 1972). See Bowman v. Bordenkircher, 522 F.2d 209 (4th Cir. 1975). Both of the parties to the present action have submitted objections to certain portions of the magistrate's report.

On August 7, 1978, plaintiff filed an application for disability insurance benefits, which was denied by the Social Security Administration, both initially and upon reconsideration. A hearing, requested by plaintiff under 42 U.S.C. § 405(b), was conducted on May 3, 1979, and resulted in an adverse determination by the administrative law judge. That determination became the final decision of the Secretary of Health, Education, and Welfare when it was approved by the Appeals Council on June 29, 1979. It is from this decision that plaintiff seeks relief pursuant to 42 U.S.C. § 405(g).

After a careful review of the record, this court finds the magistrate's report to be an accurate summary of the facts in the instant case. Plaintiff was born February 21, 1937, and was forty-two (42) years of age at the time of the administrative hearing held on May 3, 1979. Transcript at 25. Although plaintiff completed the sixth grade and attended seventh grade for some time without completing that level, id. at 27-28, serious questions exist concerning both his literacy, id. at 28, 64, 67, and his ability to do simple arithmetic, id. at 28-29, 64. Plaintiff's work history consists primarily of employment in the textile industry as a loom technician and a weaver, id. at 30-33; he was also employed briefly as an appliance repairman and mover, a farm hand, and an hourly worker in a textile mill, id. at 153. His primary employment required constant walking and bending, frequent reaching, and the lifting of heavy objects. Id. at 128. In 1974, plaintiff was injured while working on a loom, id. at 36-39, 145, and the resulting impairment to his left leg was not alleviated by two hernia operations. Id. at 36-38, 145. Consequently, degeneration of his left hip, diagnosed as avascular necrosis with a subchondral fracture of the left femoral head, id. at 146, necessitated an arthroplastic procedure in June, 1975, for a prosthetic hip replacement. Id. at 38, 144. Plaintiff was unable to return to his previous work, id. at 41, and other attempts at gainful employment were also unsuccessful. Id. at 41-43.

The medical evidence in this case consists of various medical records and reports of Dr. C. Dayton Riddle, plaintiff's treating physician, id. at 138-46, 154, reports of telephone contacts with Dr. James R. Monroe, id. at 147, and Dr. J. A. White, id. at 135, a hearing evaluation from the Speech, Hearing, and Learning Center in Greenville, South Carolina, id. at 148, and statements made in the disability applications and during the administrative hearing by the plaintiff himself concerning his condition. Although there are conflicts in the record, the evidence establishes that plaintiff continues to suffer some impairment from the problems associated with his hip prosthesis. Dr. Riddle's reports indicate that while plaintiff is not "totally disabled," id. at 148, a fifty per cent disability of the left leg is present, id. at 140, 141, and that there is no explanation for his "moments of instability." Id. at 138. Dr. Monroe's report states that neither plaintiff's hip problem, his hypertension, nor his hearing loss would preclude him from employment in the textile industry. Id. at 137. Dr. White's report characterizes plaintiff's hip impairment as "slight" and indicates that his hypertension is mild. Id. at 135. The audiologist's report reveals "a sloping sensori-neural loss of hearing to a severe level ... bilaterally." Id. at 148. Plaintiff complains of extensive problems, including cramps, id. at 55, pain, id. at 55-56, 116, 121, 132, difficulty in walking more than a block, id. at 71, episodes of instability, id. at 56, 106, 123, 132, limited ability to stand or sit for over an hour, id. at 71-72, inability to squat or bend, id. at 72, and difficulty in understanding speech because of his hearing loss, id. at 78, 125. The administrative law judge noted at the hearing that plaintiff had "a definite limp to the left side, and his left foot seems to flare outward a little more than the right." Id. at 57.

After reviewing the record and the testimony elicited at the hearing, the administrative law judge made the following findings, which were subsequently approved by the Appeals Council.

1. The claimant met the special earnings requirements of the Act on January 21, 1978, the date he stated he became unable to work, and he continues to meet them through at least June 30, 1982.

2. The claimant has the following impairments: history of mild hypertension, bilateral sensori-neural loss of hearing with normal hearing bilaterally through the speech frequencies, and history of left hip joint replacement with occasional instability and good range of motion therein.

3. The claimant's impairments in combination, including pain, do not prevent him from performing work not requiring constant walking, frequent bending, or heavy lifting.

4. The claimant is unable to perform his past relevant work as a loom fixer and textile weaver, which required constant standing, frequent bending, and lifting of heavy tools.

5. The claimant has the residual functional capacity for sedentary work as defined in section 404.1510(b) of Subpart P, Regulations No. 4.

6. The claimant is 42 years old and is defined as a "younger individual."

7. The claimant has a seventh grade formal education which is defined as "limited."

8. The claimant's work as a loom fixer and weaver imparted skills that are transferable to work other than that previously performed.

9. Under Regulation 404.1513 and Rule 201.26, Table No. L of Appendix 2, Subpart P, Regulations No. 4, it is my conclusion that the claimant, considering his maximum sustained work capability, age, education, and work experience, is "not disabled."

10. The claimant was not under a "disability" as defined in the Social Security Act, as amended, at any time up to May 3, 1979, the date of the hearing herein.

Id. at 12-13. These findings constitute the final decision of the Secretary of Health, Education, and Welfare. E. g., Baker v. Gardner, 362 F.2d 864 (3d Cir. 1966); Capaldi v. Weinberger, 391 F.Supp. 502 (E.D.Pa. 1975); Maudlin v. Celebrezze, 260 F.Supp. 287 (D.S.C.1966).

The role of the federal judiciary in the administrative scheme established by the Social Security Act is a limited one. Section 205(g) of that Act provides: "the findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive ...." 42 U.S.C. § 405(g). "Substantial evidence has been defined innumerable times as more than a scintilla, but less than a preponderance." Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). E. g., Daniel v. Gardner, 404 F.2d 889 (4th Cir. 1968); Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966); Tyler v. Weinberger, 409 F.Supp. 776 (E.D.Va.1976). This standard precludes a de novo review of the factual circumstances that substitutes the court's findings for those of the Secretary. E. g., Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971); Hicks v. Gardner, 393 F.2d 299 (4th Cir. 1968). "The court must uphold the Secretary's decision even should the court disagree with such decision as long as it is supported by `substantial evidence.'" Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). However, as noted by Judge Sobeloff in Flack v. Cohen, 413 F.2d 278 (4th Cir. 1969), "from this it does not follow ... that the findings of the administrative agency are to be mechanically accepted. The statutorily granted right of review contemplates more than an uncritical rubber stamping of the administrative...