Livingston v. Califano

• Decision Date: 16 January 1980
• Docket Number: No. 79-1563,79-1563
• Citation: 614 F.2d 342
• Parties: Charles LIVINGSTON, Appellant, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare.
• Court: U.S. Court of Appeals — Third Circuit

Page 342

614 F.2d 342

Charles LIVINGSTON, Appellant, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare.

No. 79-1563.

United States Court of Appeals, Third Circuit.

Submitted Nov. 13, 1979.

Decided Jan. 11, 1980.

As Amended Jan. 16, 1980.

Jane B. Terpstra, William P. Malloy, Legal Aid Society of Mercer County, Trenton, N. J., for appellant.

Robert J. Del Tufo, U. S. Atty., Stephen D. Taylor, Asst. U. S. Atty., Newark, N. J., for appellee.

Before GIBBONS, HIGGINBOTHAM and SLOVITER, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

Charles Livingston appeals from the district court's grant of a motion for summary judgment in favor of the Secretary of Health, Education and Welfare (HEW) in his action for review of the final decision of the Secretary pursuant to section 205(g) and section 1631 of the Social Security Act. ¹ Mr. Livingston, on May 5, 1977, filed an application for Disability and Supplemental Security income benefits under titles II and XVI of the Social Security Act, as amended. ² His claim for disability benefits was denied by the Administrative Law Judge (ALJ), after a hearing at which he waived his right to counsel, because the ALJ found that his impairment was not sufficiently severe to preclude him from engaging in substantial gainful activity within the meaning of the statute. Mr. Livingston filed suit in the district court seeking reversal after the decision of the ALJ became final when it was approved by the Appeals Council of HEW. We find that the ALJ failed to develop an adequate record and that the findings below are not supported by substantial evidence.

I. FACTS

The record discloses the following facts. In 1974, Mr. Livingston was hospitalized for arthritis-related surgery; a rheumatoid nodule was excised from his left elbow. He had developed nodules and "joint pain" in multiple joints. In October 1976, Mr. Livingston had pain, swelling, and increased heat with limitation of motion of the right elbow and left calf and leg. A month later he was hospitalized under the care of Dr. Williams, for deep vein thrombophlebitis, and was discharged with a final diagnosis of deep vein thrombophlebitis of the left leg, bursitis of the right elbow, and a ganglion cyst of the right hand. Periodic follow-up care in the laboratory was recommended. Dr. Williams subsequently noted in his report of May 12, 1977, to the Social Security Administration, that he had treated Mr. Livingston for three months for pain, swelling, and limitation of motion in his hands and knees due to degenerative arthritis. In the June 1977 report, Dr. Williams diagnosed Mr. Livingston as suffering from degenerative arthritis in both knees, a ganglion cyst on the right hand, bursitis in the right elbow, and varicose veins in the left leg.

Finally, in July 1977, Mr. Livingston was examined by Dr. Ryan, a medical consultant for the Social Security Administration and a specialist in rheumatology. Dr. Ryan stated in his report his belief that Mr. Livingston "has rheumatoid arthritis, and . . . is significantly disabled." The report also discloses that Mr. Livingston has some crepitus of the right shoulder, right elbow and knees, another large nodule on the right elbow, abnormal joint findings, and bunion deformity. A positive rheumatoid factor was found in the laboratory studies and other indications of rheumatoid arthritis, such as erosive changes in the feet and hands, were indicated by the x-rays. Mr. Livingston's chest x-ray was borderline with a possible cardiac enlargement. Dr. Ryan concluded that Mr. Livingston is unable to perform his ordinary occupation of a mason. There is no dispute regarding this fact that Mr. Livingston is unable to perform his customary occupation. Moreover, each doctor who examined Mr. Livingston has found that he suffers from symptomatic rheumatoid arthritis.

Dr. Raichelson, a second medical consultant for the Social Security Administration, also concluded that Mr. Livingston had "a significant impairment" due to "documented symptomatic rheumatoid arthritis" as substantiated by "abnormal x-ray studies." He recommended that a final determination as to severity be postponed until more detailed information be obtained. This further evaluation was never completed.

In spite of these findings, Dr. Ryan indicated in the vocational assessment sheet that Mr. Livingston could perform several job-related functions.

The other nonmedical evidence and testimony in the record may be briefly summarized. Mr. Livingston is 44 years old and has completed the eighth grade. After Mr. Livingston moved to New Jersey, he was employed as a laborer doing light work for six months and then worked as a mason, which involved heavy work, from 1963 to 1976. This was the extent of the evidence concerning Mr. Livingston's work experience.

Mr. Livingston also testified that he lives with his cousin, does not own an automobile, and therefore does not drive. He testified that he had been advised to walk a mile a day by his doctor and that he was taking "a little tiny pill." No inquiry was made as to what this medication was. There was also evidence that Mr. Livingston receives $178.00 per month from the Trenton City Welfare, which is his only income. ³ It is undisputed that Mr. Livingston meets the earnings requirements of the statute.

Finally, there was testimony of the vocational expert, Mr. Rubin, who testified to the meaning of light and sedentary work as defined by the United States Department of Labor. Mr. Rubin listed what jobs of a light or sedentary nature were available.

II. THE DUTY OF THE ALJ TO DEVELOP THE RECORD

We note at the outset that we must accept the Secretary's findings as conclusive if they are supported by "substantial evidence." 42 U.S.C. § 405(g) (1976). The claimant satisfies his initial burden of showing that he is unable to return to his previous employment when his subjective claim is substantiated by medical evidence. ⁴ There is no evidence whatsoever to contradict the fact that Mr. Livingston is unable to return to his previous employment, and the ALJ's findings do not dispute this. Thus, Mr. Livingston has met his initial burden of demonstrating that due to his disability he is unable to return to his initial employment as a mason. Whether or not the burden actually shifts to the Secretary once the claimant has met his burden, there is no doubt that the Secretary must establish that the claimant has the ability to engage in alternative substantial gainful employment activity. ⁵ If the Secretary is unable, by substantial evidence, to overcome the claimant's prima facie case, a reviewing court may choose to reverse with or without further hearings. ⁶

This circuit has recently announced, in a case remarkably similar to the instant case, standards that the ALJ must meet in developing the record. In Dobrowolsky we stated that the ALJ should "assume a more active role when the claimant is unrepresented" and thus has a "heightened" duty of care and responsibility in such instances. ⁷ The fact that a claimant is unrepresented by counsel and has knowingly waived this right is not alone sufficient for remand. Hess v. Secretary of HEW, 497 F.2d 837, 840 n.4 (3d Cir. 1974). However, if it is clear that the lack of counsel prejudiced the claimant or that the administrative proceeding was marked by unfairness due to the lack of counsel, this is sufficient for remand, ⁸ or reversal.

We find, as we did in Dobrowolsky, that the claimant was prejudiced by lack of counsel and that the hearing can only be characterized as unfair due to the failure of the ALJ to develop the record.

Most importantly, the fact that Mr. Livingston appears to fall within one of the per se categories for disabilities was never explored at the hearing. The statute defines disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical . . . impairment . . . which has . . . or can be expected to last for a continuous period of not less than 12 months . . . ." 42 U.S.C. § 423(d)(1) (A). The regulations set forth the sequential steps to be followed in making this determination. ⁹ Once "a determination that an individual is or is not disabled can be made at any step, evaluation under a subsequent step shall be unnecessary." 20 C.F.R. § 404.1503(a) (1979). If an individual's impairment is listed in Appendix 1 of the regulations, "a finding of disability shall be made without consideration of the vocational factors." Id. § 404.1503(d). Note that inquiries beyond medical considerations and current work activity, as to whether the individual has any impairments which prevent past relevant work, id. § 404.1503(e), or whether the individual's impairments prevent other work, id. § 404.1503(f), are subsequent steps which are unnecessary if the claimant's disability...