Parker v. Califano

• Citation: 441 F. Supp. 1174
• Decision Date: 07 November 1977
• Docket Number: No. C-76-2896.,C-76-2896.
• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
• Parties: Frankie L. PARKER, Plaintiff, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant.

441 F. Supp. 1174

Frankie L. PARKER, Plaintiff, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant.

No. C-76-2896.

United States District Court, N. D. California.

November 7, 1977.

COPYRIGHT MATERIAL OMITTED

Sandra J. Horwich, Kaplan & Horwich, Richmond, Cal., for plaintiff.

James L. Browning, Jr., U. S. Atty., Eric J. Swenson, Asst. U. S. Atty., San Francisco, Cal., for defendant.

MEMORANDUM OF OPINION

RENFREW, District Judge.

Plaintiff brought this action pursuant to 42 U.S.C. § 405(g), § 205(g) of the Social Security Act as amended, to obtain judicial review of a final decision of the Secretary of the Department of Health, Education and Welfare ("HEW") to deny his application for disability insurance benefits. Both parties have filed motions for summary judgment. Having carefully considered the arguments of counsel, the Court concludes that although the Secretary's decision was supported by substantial evidence, the case must be remanded to the hearing examiner for the consideration of new evidence and to make additional findings.

I. FACTUAL BACKGROUND

Plaintiff is a forty-year-old black man born in Mississippi. He completed ten or eleven years of high school without receiving a diploma. As the result of a childhood accident, his right arm is virtually useless. Between 1960 and 1963, plaintiff went through "a period of emotional disturbance," as the hearing examiner described it in his findings. He was diagnosed as paranoid and schizoid if not schizophrenic and was committed for ten weeks to Napa State Hospital, from which he was discharged after responding apparently successfully to electroshock and drug therapy. Since 1963, plaintiff has not undergone any psychiatric treatment. He consulted physicians concerning pain in his lower back, neck, and head, although he did not produce medical records concerning some of those consultations at the hearing.

Plaintiff was fairly regularly employed between 1952 and 1971 or 1972.

Plaintiff filed an application for disability insurance benefits on September 6, 1963, shortly after his formal discharge from Napa State Hospital. His application was denied on October 21, 1963, because neither his physical nor his psychological problems were found to prevent him from pursuing substantial gainful employment. Plaintiff did not seek review of this decision in federal district court.

Plaintiff again filed an application for disability insurance benefits on August 7, 1973, and this application is at issue in this case. Plaintiff listed three allegedly disabling conditions, "curvature of spine, paralyzed right arm, severe headaches just above ear on left side." Plaintiff alleged that his disability has prevented him from working since early 1971.

Plaintiff's claim was denied by the Division of Initial Claims on November 7, 1973. A request for reconsideration filed on December 3, 1973, was denied on March 27, 1974. Plaintiff then requested a hearing before an administrative law judge, which was held on October 10, 1974. Plaintiff appeared at the hearing represented by an attorney.¹ Both plaintiff and an independent vocational expert testified. The hearing examiner also accepted a voluminous set of medical exhibits, including the evaluations of several doctors who examined plaintiff in both the early 1960s and the early 1970s. After the hearing, plaintiff was permitted to supplement the record with additional evidence relating to his psychological problems in the early 1960s. On January 20, 1975, the administrative law judge rendered his decision denying plaintiff's application. He concluded that despite his medical problems, plaintiff retained a residual capacity to perform certain types of light labor and that plaintiff therefore did not have a disability within the meaning of 42 U.S.C. § 423(d)(1)(A), § 223(d)(1)(A) of the Social Security Act as amended.²

On March 19, 1976, plaintiff requested a review of the decision of the hearing examiner. That decision became final when the Appeals Council denied that request on September 30, 1975. On December 28, 1976, after several extensions of time to file suit in federal district court granted by the Appeals Council, plaintiff filed this lawsuit challenging the decision of the administrative law judge.

II. STANDARDS OF REVIEW

Although the distinction has not always been clearly recognized, courts engage in two levels of review of disability benefit decisions of HEW. The first can be called substantiality-of-the-evidence review, and the second remand review.

District courts review the findings of hearing examiners to determine whether they are supported by substantial evidence. Section 405(g) of Title 42 of the United States Code, § 205(g) of the Social Security Act as amended, reads in part:

"Any individual, after any final decision of the Secretary made after a hearing to which he was a party * * * may obtain a review of such decision by a civil action * * *. The federal district court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing. The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive * * *."

This review limits the Court to the single question of whether or not the findings of the Secretary of HEW are supported by substantial record evidence. Chavies v. Finch, 443 F.2d 356, 357 (9 Cir. 1971); Dean v. Gardner, 393 F.2d 327, 328 (9 Cir. 1968). This statutory restriction upon the scope of judicial review is applicable to the findings of fact if supported by substantial evidence and extends as well to inferences drawn therefrom if they have a substantial basis in the record. Mark v. Celebrezze, 348 F.2d 289, 293 (9 Cir. 1965); McMullen v. Celebrezze, 335 F.2d 811, 814 (9 Cir. 1964), cert. denied, 382 U.S. 854, 86 S.Ct. 106, 15 L.Ed.2d 92 (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), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938).

A claimant bears the burden of establishing both his initial and his continuing entitlement to disability insurance benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9 Cir. 1971); Seitz v. Secretary of Social Security Administration, etc., 317 F.2d 743, 744 (9 Cir. 1963). In order to satisfy this burden, the claimant must preliminarily establish that he is and remains unable to return to his customary employment. If he does so, the burden of producing evidence shifts to the Secretary to prove that the claimant is capable of performing other forms of substantial gainful activity which exist in the national economy, unless evidence already in the record establishes this capability. If the Government meets this burden, the claimant then bears the overall burden of demonstrating that his disability precludes substantial gainful employment. Meneses v. Secretary of Health, Education and Welfare, 143 U.S.App.D.C. 81, 84, 442 F.2d 803, 806 (1971). See Kerr v. Richardson, 387 F.Supp. 361, 363 (E.D.Cal.1974).

While most cases just involve the first level or substantiality of evidence review, § 405(g) also authorizes federal courts to engage in a second level of review with much looser standards upon a sufficient showing. Under this level or remand review, "the court * * * may, at any time, on good cause shown, order additional evidence to be taken before the Secretary * * *." 42 U.S.C. § 405(g). Although the claimant still retains "the ultimate burden of persuasion," "it does not follow that the court is bound to sustain a denial of disability benefits where the applicant has raised a serious question and the evidence affords no sufficient basis for the Secretary's negative answer." Kerner v. Flemming, 283 F.2d 916, 922 (2 Cir. 1960); Selig v. Richardson, 379 F.Supp. 594, 601 (E.D.N. Y.1974); Cooney v. Finch, 300 F.Supp. 818, 821-822 (W.D.Pa.1969). "While it is true that the claimant has the burden of proof on the issue, the administrative judge is in the peculiar position of adjudicator while also being charged with developing the facts." Smith v. Weinberger, 394 F.Supp. 1002, 1008 (D.Md.1975); Heisner v. Sec'y of HEW, 538 F.2d 1329, 1331 (8 Cir. 1976); Miranda v. Sec'y of HEW, 514 F.2d 996, 998 (1 Cir. 1975); Hess v. Sec'y of HEW, 497 F.2d 837, 840 (3 Cir. 1974); Easley v. Finch, 431 F.2d 1351, 1353 (4 Cir. 1970). HEW regulations specifically require the hearing examiner to "inquire fully into the matters at issue and to receive in evidence the testimony of witnesses and any documents which are relevant and material to such matters." 20 C.F.R. § 404.927.

The Court can therefore order a remand even if a claimant failed to produce substantial evidence of disability at the administrative hearing. Factors relevant to "good cause" for remand include (1) the weight of the affirmative evidence that the claimant is not disabled, Kerner v. Flemming, supra, 283 F.2d at 922; Cooney v. Finch, supra, 300 F.Supp. at 821-822; (2) the weight of lay evidence of medical impairments in the absence of adequate medical evidence, id., at 821; (3) the existence of new evidence which "`bears directly and substantially on the matter in dispute,'" Kemp v. Weinberger, 522 F.2d 967, 969 (9 Cir. 1975); (4) the ready obtainability of existing or potential new evidence, Heisner v. Sec'y of HEW, supra, 538 F.2d at 1332; Hess v. Sec'y of HEW, supra, 497 F.2d at 840-841; (5) the claimant's ability to participate intelligently and effectively in the hearing, Gold v. Sec'y of HEW, 463 F.2d 38, 43 (2 Cir. 1972); Webb v. Finch, 431 F.2d 1179, 1180 (6 Cir. 1970); Alamo v. Richardson, 355 F.Supp. 314, 316-317 (D.P.R.1972); (6) representation of the claimant by counsel, Heisner v. Sec'y...