Hess v. Secretary of Health, Education and Welfare

• Decision Date: 05 June 1974
• Docket Number: No. 73-1937.,73-1937.
• Citation: 497 F.2d 837
• Parties: James HESS, Jr., Appellant, v. SECRETARY OF HEALTH, EDUCATION AND WELFARE, United States of America.
• Court: U.S. Court of Appeals — Third Circuit

497 F.2d 837 (1974)

James HESS, Jr., Appellant, v. SECRETARY OF HEALTH, EDUCATION AND WELFARE, United States of America.

No. 73-1937.

United States Court of Appeals, Third Circuit.

Submitted April 2, 1974.

Decided June 5, 1974.

W. J. Krencewicz, Shenandoah, Pa., for appellant.

Robert E. J. Curran, U. S. Atty., Richard J. Stout, Asst. U. S. Atty., Philadelphia, Pa., for appellee.

Before VAN DUSEN, WEIS and GARTH, Circuit Judges.

Submitted under Third Circuit Rule 12(6) April 2, 1974.

OPINION OF THE COURT

WEIS, Circuit Judge.

To arrive at a consensus on the priority to be afforded the matters entrusted to the jurisdiction of the federal courts might be difficult indeed, but few would dispute the premise that claims of those entitled to disability benefits from the Social Security Administration must rank high on the scale of human concern. On appeal, a court is bound by findings of fact of the Secretary, supported by substantial evidence, but "substantial" means just that and is not the equivalent of a "scintilla." The statute further grants the right to the district court, for good cause shown, to remand to the Secretary for the taking of additional evidence. We are aware, also, of the 1968 amendments (P.L. 90-248) to 42 U.S.C. § 423(d) expressing the intent of Congress to establish firm standards for recovery of benefits. With these not inconsistent considerations in mind, we approach our review of this case.

The plaintiff last worked on July 19, 1971. He has been under medical treatment and has had hospital care since that time for his condition which was diagnosed as bronchial asthma with obstructive ventilatory impairment. After his application for disability benefits under the Social Security Act, 42 U.S.C. § 416(i), was rejected, he was granted a hearing before an administrative law judge on October 10, 1972 where he was again denied. His appeal to the district court was unsuccessful, and he now seeks review in this court. After a careful review of the record, we conclude that there is a significant lack of important factual data which requires a remand to the Social Security Administration.

In preparing his hearing decision, the administrative law judge reported, ". . . In evaluating this case, the undersigned is strongly cognizant of the puzzling nature of Mr. Hess's condition, the cause of which has so far evaded those managing his medical care." He found that the diagnosis was chronic bronchitis with a history of recurrent infectious bronchitis productive of a moderately severe obstructive ventilatory impairment. Because of this condition, the administrative law judge felt that the plaintiff was not capable of doing light work but could perform sedentary work¹ and, hence, was not disabled within the meaning of the Social Security Act, 42 U.S.C. § 423(d).²

This conclusion was reached despite Hess's testimony that he was unable to and, in fact, had not worked for more than 17 months and the absence of any medical opinion on plaintiff's ability to perform even sedentary work.

At the hearing it was established that Hess was 43 years of age, had completed the eighth grade, had worked at various unskilled jobs, and from 1963 to 1971 had been employed as a stock selector for North American Rockwell Company. Although he had originally done some work as a tinsmith with that company for a short period of time, Hess spent the last eight years of employment with North American Rockwell moving parts weighing as much as 50 to 70 pounds in and out of the stock room.

On his final day of work, the plaintiff experienced sharp chest pains, and two days later his family physician, Dr. Schlitzer, had Hess admitted to the Good Samaritan Hospital in Pottsville, Pennsylvania where he remained for twelve days. After discharge from the hospital, the condition did not improve sufficiently to allow the plaintiff to return to work, and Dr. Schlitzer referred Hess to Dr. Ricchiuti, an allergist.

The plaintiff was admitted to the Pottsville Hospital in November, 1971 for testing because of the continuing complaints of shortness of breath, wheezing, and coughing. On March 9, 1972 he was referred to the Geisinger Medical Center in Danville, Pennsylvania on an outpatient basis for evaluation of the same condition.³

Hess testified that at the suggestion of the Geisinger Center he went walking every day that the weather was nice and that he would go on the average of about a half mile "and then I just can't go any farther . . . When I get home, I have to lay down."

To clear mucous and phlegm from his lungs, he performs a routine each morning consisting of lying over the bed on his stomach, then on each side for a period of ten minutes each. He testified that he was unable to perform any of the routine chores about his home and was unable to sleep at night until 2:00 or 3:00 A.M.

In response to a hypothetical question assuming the truth of the plaintiff's complaints, a vocational expert testified, "These factors would appear to limit him considerably in terms of full time substantial gainful employment." When asked by the administrative law judge to assume that from the medical evidence in the case there was no physical impediment to sedentary work activity, the vocational expert said there would be employment for a man of his age, background and education in the region.

During the hearing, Hess also testified that he was to report back to the Geisinger Medical Center on October 19, 1972, that he currently received two injections every week from Dr. Ricchiuti, and that he took one medication four times and another three times daily. Plaintiff reported also that Dr. Schlitzer, the family physician, saw him twice a month and had not released him for work.

Before closing the record, the administrative law judge said, "I may very seriously consider asking the Geisinger people if they can come up with a report for your latest visit there. Now it all depends on how I feel about the state of your record when it comes time for me to write the decision and review all the records in the case." Since no reference appears in the record to any further report from the Geisinger Clinic, we assume that it was never secured.

The plaintiff was not represented by counsel at the hearing,⁴ and he produced neither physicians nor medical reports on his behalf. The only medical evidence in his file was secured by the Social Security Administration and consisted of summaries of...