Keef v. Weinberger, 74-241-C5.

• Court: U.S. District Court — District of Kansas
• Writing for the Court: ROGERS
• Citation: Keef v. Weinberger, 404 F.Supp. 1193 (D. Kan. 1975)
• Decision Date: 28 October 1975
• Docket Number: No. 74-241-C5.,74-241-C5.
• Parties: Carol E. KEEF, Plaintiff, v. Caspar W. WEINBERGER, Secretary of the Department of Health, Education and Welfare of the United States, Defendant.

404 F. Supp. 1193

Carol E. KEEF, Plaintiff, v. Caspar W. WEINBERGER, Secretary of the Department of Health, Education and Welfare of the United States, Defendant.

No. 74-241-C5.

United States District Court, D. Kansas.

October 28, 1975.

Robert B. Wareheim, Topeka, Kan., for plaintiff.

Richard L. Meyer, Asst. U.S. Atty., Topeka, Kan., defendant.

MEMORANDUM AND ORDER

ROGERS, District Judge.

This proceeding was instituted by plaintiff against the Secretary of Health, Education and Welfare as authorized by Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), for the purpose of obtaining judicial review of a final decision of the Secretary denying her application for disability insurance benefits under 42 U.S.C. §§ 416(i), 423. Both parties in this action have submitted motions for summary judgment together with briefs in support of their respective positions. By waiving oral argument, the parties have indicated the case is ready for summary disposition.

The plaintiff filed her application to establish a period of disability on September 5, 1972, as provided in 42 U.S.C. § 416(i), and for disability insurance benefits, as provided under 42 U.S.C. § 423. The plaintiff, the claimant below, alleged that she became unable to engage in substantial gainful employment due to a work-related accident on November 11, 1969, when a pipe struck her on the head causing her nerve damage which progressed into neuralgia and arthritis of the spine. Initially, the claim was denied in reliance upon a finding that her physical examination remained essentially normal and that no significant motion limitation due to the alleged arthritic involvement had been documented. Record at 117. This finding was based upon the medical report supplied by Dr. Samuel Petrie. On September 18, 1973, the Administrative Law Judge held a hearing regarding the claimant's application at which the claimant, her attorney and a favorable witness were present. After medical reports from four (4) doctors, the University of Kansas Medical Center, and a psychiatrist were submitted for consideration by the Administrative Law Judge, the decision denying plaintiff's application was filed on March 24, 1974. The Appeals Council upheld the decision of the Administrative Law Judge; consequently his decision became the final decision of the Secretary on October 7, 1974.

In his evaluation of the evidence and statement of his rationale, the Administrative Law Judge found that the claimant would meet the special earnings requirements for purposes of receiving disability benefits to and including September 30, 1973. He also found that while the claimant established the existence of a medically determinable physical impairment, she had failed to establish that by reason of the impairment she was unable to engage in substantial gainful activity. The Administrative Law Judge felt that in light of the medical evidence the claimant could perform the relatively non-demanding work of a clerk in a bakery or work as a domestic, work she had performed at some time during her working years.

The claimant filed this action on December 6, 1974, which was exactly sixty days after the Administrative Law Judge's decision became final. 42 U.S. C. § 405(g). In reviewing the Secretary's decision, the Court is charged with the limited function of determining whether the findings of fact are supported by substantial evidence and the inferences reasonably drawn therefrom. If there is such support, the reviewing court is precluded from disturbing the findings. Trujillo v. Richardson, 429 F.2d 1149 (10th Cir. 1970); Adams v. Richardson, 336 F.Supp. 983 (D.Kan. 1972). In Branch v. Finch, 313 F.Supp. 337 (D.Kan.1970) (Templar J.), the district court judge clarified the standard for review in the following manner:

Substantial evidence has been defined as `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' Stated in a different manner the evidence must be such, if the trial were to a jury, as would justify a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. If there is only a slight preponderance of the evidence on one side or the other, the Secretary's finding should be affirmed. Branch v. Finch, supra at 341.

The key question in this case is whether there is substantial evidence to sustain the finding that the claimant was not unable to engage in substantial gainful activity by reason of her medically determinable physical impairment. To properly analyze the finding of the Administrative Law Judge, it is necessary to review the purpose of the Social Security Act, the standards applicable to the related administrative proceedings, the steps the claimant must follow and the evidence that should be considered.

The purpose of the Social Security Act is to ameliorate some of the rigors of life for those who are disabled or impoverished. Dvorak v. Celebrezze, 345 F. 894 (10th Cir. 1965). To accomplish this goal, the Act must be construed liberally. Since the district court is bound by the findings made by the Administrative Law Judge if they are supported by substantial evidence, it is precluded from trying the case de novo. This, however, does not abrogate the court's traditional function of scrutinizing the entire record to determine whether the conclusions made by the Secretary are rational. Mitchell v. Weinberger, 404 F.Supp. 1213 (D.Kan. 1975). If the Court should determine that reliance has been placed upon one portion of the record in disregard of overwhelming evidence to the contrary, it is obligated to modify or reverse the Secretary's findings with or without remanding the case for a rehearing. Branch v. Finch, 313 F.Supp. 337 (D. Kan.1970).

The statutory definition of disability, as set forth in 42 U.S.C. § 423(d), is an

(1)(A) inability to engage in substantial gainful activity by reason of any 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 . . ..

(2)(A) For purposes of paragraph (1)(A) — 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 . .

(3) For purposes of this subsection, a `physical or mental impairment' is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.

The Act places the burden of establishing the existence of a disability on the claimant. 42 U.S.C. § 423(d)(5).

For a claimant to gain disability benefit insurance, he must first establish that he meets the special earnings requirement of the Act. 42 U.S.C. §§ 416(i)(3)(B); 423(c)(1)(B). Then the claimant must sustain his burden of proof under 42 U.S.C. § 423, which establishes the bifurcated test that (1) he has a medically determinable physical or mental impairment and (2) by reason thereof he is unable to engage in substantial gainful activity. Even when the claimant fails to overcome these hurdles, the burden of proof shifts to the Secretary to establish that if the claimant can engage in substantial gainful activity such activity exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, whether a specific job vacancy exists for him or whether he would be hired if he applied for work. 20 C.F.R. § 404.1502; contra, Gardner v. Smith, 368 F.2d 77 (5th Cir. 1966). If the Administrative Law Judge determined that the claimant can return to his previous employment, it is deemed sufficiently established that such work exists in the national economy. Branch v. Finch, 313 F.Supp. 337 (D.Kan.1970)

In terms of this case, the claimant was able to establish she meet the special earnings requirements of the Act and that she had a medically determinable physical impairment; however, in the opinion of the Administrative Law Judge, she failed to establish that her physical impairment precluded her from engaging in substantial gainful employment, i. e., working as a domestic or a bakery clerk. In determining whether there is substantial support in the record for the Secretary's denial of benefits, four inter-related types of proof are to be considered: (1) objective medical facts; (2) expert medical opinion; (3) subjective evidence of pain and disability; and (4) claimant's present age, educational background and work history. Adams v. Richardson, 336 F.Supp. 983 (D.Kan.1972). As in many cases which are appealed to the district court, the conflict arises between the expert medical opinion, a form of subjective evidence, and the subjective evidence of pain. While each of these items of consideration may be supported by objective data, they are precisely the types of evidence whose weight and credibility is to be determined by the Administrative Law Judge as the finder of fact and this Court may not reweigh such evidence or substitute its opinion for that of the Secretary when supported by substantial evidence.

The record in this case discloses that at the time of the hearing the claimant was approximately 52 years of age, had a high school education and had many non-skilled employment experiences, although many were of short duration due to the transitory nature of her first husband's occupation. Her first husband divorced her in 1964 and she remarried in 1967. Her present husband was then under treatment at the Veterans'...