Garcia v. Califano

• Citation: 463 F. Supp. 1098
• Decision Date: 09 January 1979
• Docket Number: No. 77 C 2448.,77 C 2448.
• Parties: Francesca GARCIA, S. S. # XXX-XX-XXXX, Plaintiff, v. Joseph CALIFANO as Secretary of Health, Education and Welfare, Defendant.
• Court: U.S. District Court — Northern District of Illinois

463 F. Supp. 1098

Francesca GARCIA, S. S. # XXX-XX-XXXX, Plaintiff, v. Joseph CALIFANO as Secretary of Health, Education and Welfare, Defendant.

No. 77 C 2448.

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

January 9, 1979.

COPYRIGHT MATERIAL OMITTED

Daniel Galatzer, Chicago, Ill., for plaintiff.

Michael L. Siegel, Asst. U. S. Atty., Chicago, Ill., for defendant.

MEMORANDUM AND ORDER

JULIUS J. HOFFMAN, Senior District Judge.

This is an action for judicial review of a final decision of the Secretary of Health, Education and Welfare, denying the plaintiff disability insurance benefits as provided under section 223 of the Social Security Act. 42 U.S.C. § 423. The court derives its jurisdiction from 42 U.S.C. § 405(g).

An examination of the record of proceedings before the Administrative Law Judge reveals that the plaintiff filed an application for disability insurance benefits on February 18, 1975, alleging that lower back pain commencing December 29, 1973, rendered her unable to work. After the application was denied by the Bureau of Disability Insurance, and that decision was upheld upon reconsideration, the plaintiff requested and was granted, a hearing before an Administrative Law Judge. The Administrative Law Judge, hereinafter referred to as the ALJ, considered the plaintiff's claim de novo, and on September 29, 1976, found that the plaintiff was not entitled to disability insurance benefits. The Appeals Council received additional evidence and on February 18, 1977, denied review of the hearing decision, approving the findings of the ALJ. Accordingly, the ALJ's decision became the final decision of the Secretary, subject to judicial review by the district court. 42 U.S.C. § 405(g). This case is now before the court on the parties' cross-motions for summary judgment.

Because the Social Security Act confines the scope of judicial review to evidence within the Administrative record, motions for summary judgment are procedurally improper vehicles for a decision on the merits of the instant complaint. Davis v. Califano, 437 F.Supp. 978, 979 (N.D.Ill. 1977); Brown v. Secretary of Health, Education and Welfare, 403 F.Supp. 938, 940 (E.D.Wis.1975). Therefore, the court will treat the defendant's motion for summary judgment as a motion for an order affirming the Secretary's decision and the plaintiff's motion, as a motion for an order reversing the Secretary's decision. Davis v. Califano, supra; Brown v. Secretary of Health, Education and Welfare, supra. The major issue for determination by the court is whether the Secretary's decision is supported by substantial evidence. Dvorak v. Weinberger, 405 F.Supp. 1398 (N.D.Ill. 1975).

The plaintiff, Francesca Garcia, is a fifty year old woman with a third-grade education. The record indicates that she speaks, but neither reads nor writes Spanish and has but a limited ability to read and write English.

At the hearing, the claimant appeared unrepresented by counsel and upon inquiry by the ALJ, expressed her desire to proceed without an attorney. She was then simultaneously informed that she had the right to an attorney and that she was waiving that right.

In addition to the testimony of the claimant, her daughter, Gloria Jacobs, and a vocational expert, Philip Katch, the record contains various documents including medical reports by Dr. Robert C. Busch, Dr. James P. Ahstrom, Jr., Dr. Jorge O. Galante and Dr. James J. Migala. The reports of all doctors confirm that the claimant is suffering from spondylolisthesis of the L-4 and L-5 vertebra, with some forward displacement of L-4 on L-5.

On December 11, 1973, Dr. Robert C. Busch conducted both a physical and x-ray examination of Mrs. Garcia and diagnosed her condition as "bilateral lumbosacral sprain with sciatic radiation of spasm into both hips and down the posterior aspect of both thighs with bilateral sciatica and spondylolisthesis of L-4 and L-5." His physical examination revealed "tenderness and spasm on palpation and pressure over the lumbosacral and paravertebral areas bilaterally. . . . Weakness, stiffness and resistance to motion with spasm increased on motion in extremes."

In a section of his report entitled "Remarks: Findings resulting from the injury," Dr. Busch noted that the claimant had "residual complaints and disability, a source of discomfort for this patient," and characterized her condition as an industrial loss of "40% of the right leg and 40% of the left leg." No other interpretation of the objective medical findings was expressed.

In October of 1973, the claimant was treated at the Gottlieb Memorial Hospital for a disorder unrelated to the present claim. A report from the Department of Radiology of that institution indicates that Mrs. Garcia had "minimal spondylolisthesis between L-4 and 5" when she was admitted.

Mrs. Garcia was next examined on March 21, 1975, by Dr. James P. Ahstrom, who appears from the record to have been the Administration's consultant. His report indicates that a physical examination of the claimant revealed a tenderness "over the lumbosacral area and in each iliolumbar angle."

X-ray studies of the lumbosacral spine show sacralization of L5 on the right side and spondylolisthesis of L4 on L5 with . . . forward displacement of L4 on L5. There is an old wedging of D11 and 12 with some irregular borders of these bodies. The essential change consists of spondylolisthesis of the 4th lumbar vertebra.

Dr. Ahstrom characterized the claimant's condition as a "significant cause for back and leg pain." He expressed the opinion that it was "conceivable that an individual with this condition could pursue some type of activity of a sedentary or non-physical nature. It is not reasonable that she should be expected to engage in heavy physical activity such as bending, lifting, running or jumping." This is the only opinion expressed by Dr. Ahstrom in his written report relevant to the extent of the claimant's ability to engage in employment.

Subsequent to the hearing before the ALJ, the claimant was examined by Dr. Jorge O. Galante. Dr. Galante diagnosed her condition as chronic low back syndrome with sciatica and "spondylolisthesis L4-L5," finding that her "primary limitation stemmed from severity of back pain." He also found that she was able to walk for one hour during an eight hour work day and that she could sit for eight hours during that same period. It was his opinion that she had the use of both hands for simple grasping and fine manipulating.

Finally, Mrs. Garcia was examined by Dr. James J. Migala on October 18, 1976. This report, however, was not submitted to the ALJ until after his determination, but was considered by him in concluding that a change in his decision was not warranted. Dr. Migala also found spondylolisthesis and noted that the claimant "appeared to be disabled to the point where rehabilitation might be questionable."

At the hearing, the claimant herself testified that she could no longer work in or out of the home because of the pain she experienced. This was corroborated by the testimony of the claimant's daughter, Gloria Jacobs, who also testified that Mrs. Garcia was unable to remain in one position for any length of time.

Philip Katch, a vocational expert, testified at the ALJ's request. In response to three hypothetical questions "based upon several possible holdings the ALJ could make in this case," Katch testified that an individual with Mrs. Garcia's combination of impairments if found severely limited by arthritis of the right hand and spondylolisthesis, could perform no jobs. If she were found to be moderately limited, or mildly limited, however, there were certain jobs which she could perform within the Chicago area. After hearing the testimony of the vocational expert, the claimant testified that her pain prevented her from engaging in the activities described by Philip Katch.

Upon this record, the ALJ found that the claimant was not disabled within the meaning of 42 U.S.C. § 423. The standard controlling this court's review is whether the Secretary's decision is supported by substantial evidence when the record is viewed as a whole. 42 U.S.C. § 405(g); Moon v. Celebrezze, 340 F.2d 926 (7th Cir. 1965). Substantial evidence is "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).

A claimant is disabled within the meaning of the Social Security Act if he suffers from 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," and his impairment renders him unable to do his previous work as well as unable to engage in any other kind of substantial gainful employment. 42 U.S.C. § 423(d)(1)(A), (d)(2)(A); Rayborn v. Weinberger, 398 F.Supp. 1303, 1309 (N.D.Ind. 1975). The claimant has the initial burden of showing that he suffers from a medically determinable impairment and that he is unable to engage in substantial gainful employment. Hassler v. Weinberger, 502 F.2d 172 (7th Cir. 1974). Once this has been established, however, the burden shifts to the Secretary to prove that there is some other kind of gainful employment available which the claimant is able to perform. Stark v. Weinberger, 497 F.2d 1092, 1097-98 (7th Cir. 1974).

The record indicates, and the Secretary concedes, that the claimant has shown that her impairment prevents her from continuing in her former employment. Therefore the fact of the claimant's physical impairment, at least as it relates to her back condition, is not in dispute. It is rather the severity of the impairment and the extent to which it limits her ability to engage in other employment that is in question.

The ALJ found that the "claimant's back impairments and arthritic right hand limit her only moderately" and do not prevent her from...