Paul v. Ribicoff

• Decision Date: 28 May 1962
• Docket Number: Civ. A. No. 7138.
• Citation: 206 F. Supp. 606
• Parties: Homer C. PAUL, Plaintiff, v. Abraham RIBICOFF, as Secretary of the United States Department of Health, Education and Welfare, Defendant.
• Court: U.S. District Court — District of Colorado

206 F. Supp. 606

Homer C. PAUL, Plaintiff, v. Abraham RIBICOFF, as Secretary of the United States Department of Health, Education and Welfare, Defendant.

Civ. A. No. 7138.

United States District Court D. Colorado.

May 28, 1962.

COPYRIGHT MATERIAL OMITTED

Harry E. Carleno and Robert R. Gallagher, Jr., Englewood, Colo., for plaintiff.

Lawrence M. Henry, U. S. Atty., Denver, Colo., for defendant.

ARRAJ, Chief Judge.

This action was brought under the Social Security Act for judicial review of a decision rendered by a hearing examiner of the Office of Hearings and Appeals, Social Security Administration, Department of Health, Education, and Welfare wherein plaintiff's claims for the establishment of a period of disability and for disability benefits were denied. Request for review was denied by the Appeals Council. The matter is presently before the Court on motions for summary judgment filed by each of the parties.

It is alleged that the plaintiff first became unable to work on August 13, 1957, because of a "disabled back". At that time plaintiff was sixty-two years of age, and he had eight years of formal education. Plaintiff's first employment consisted of general farm work which lasted approximately ten years. For thirty-seven years thereafter he was employed in drop forging in Illinois which involved the handling of heavy sheets of steel. The record indicates that the plaintiff reluctantly terminated drop forge work due to lengthy absences incurred by his back condition, and upon the advice of a doctor, he moved to the dry climate of Colorado.

In essence, the plaintiff's condition may be characterized as osteoarthritis of the back. The hearing examiner concluded that this arthritic condition has prevented the plaintiff from engaging in the heavy drop forging employment; however, the hearing examiner apparently felt that whereas none of the medical evidence established that the claimant was prevented from engaging in light or sedentary work, he was capable of engaging in substantial gainful activity.

The amount of activity in which plaintiff engaged appears to have been sporadic, depending in part upon weather conditions and the amount of exertion required. For instance, during the period in question, the plaintiff did some painting on the lower part of his house and worked in his yard and garden. He had done some hunting and fishing, and, for a time he went horseback riding two to four times a week. He drove an automobile with an automatic transmission short distances, and he occasionally shopped for groceries.

On the other hand, the record discloses that the plaintiff had performed some relatively normal tasks, such as driving a tractor, which rendered him incapacitated for several days. Apparently, he was unable to sit for long periods of time. On occasion he was in severe pain, and at times he could not control his movements when attempting to engage in ordinary activities.

The plaintiff wore a back support which enhanced his ability to undertake some exertive activities without undue discomfort. He has been given extensive medication to relieve the pain caused by the arthritic condition.

It is indicated that various types of employment for the plaintiff have been considered by him and his family. Such work as janitorial services, step ladder assembly or service station attending was rejected due to the probable necessity of bending or stooping which might be involved. There is, however, no showing that an attempt was made to actually engage in each of these occupations.

This Court has recently considered the term "disability" as it is defined in Sections 216 and 223 of the Social Security Act, 42 U.S.C.A. Secs. 416, 423; Clifton v. Ribicoff, D.C.Colo. 1961, 195 F.Supp. 673. It was noted therein that the several cases which have interpreted the sections of the Social Security Act in question indicate a stricter test is imposed by the Secretary than that contemplated by the Act. A fair and reasonable interpretation of the Act was said to rest upon a test for disability which consists primarily of two parts: "(1) a determination of the extent of the physical or mental impairment and (2) a determination whether that impairment results in an inability to engage in any substantial gainful activity." Klimaszewski v. Flemming, D. C.E.D.Pa.1959, 176 F.Supp. 927, 931.

This Court also declared in Clifton that the plaintiff must carry the burden of proof in showing that a disability exists as defined by the Act, subject, however, to a limit on the amount of proof which the plaintiff must submit to carry that burden. In this regard reference was made to Corn v. Flemming, D.C.S.D. Fla.1960, 184 F.Supp. 490, wherein it was said that a claimant's proof of inability to further engage in his usual or lifelong occupation was sufficient to carry this burden of proof when there was no definite evidence as to other work which he could perform. "Mere abstract speculation by the Referee of (the) Appeals Council as to a possible avenue of employment for a claimant is not `evidence' which a claimant should be required to refute; if it were, disability would be a meaningless word."

However, because of the voluminous number of recent cases dealing with this subject, this Court feels it should clarify its view as to what is the applicable law in this area.

By statute, the claimant has the burden of furnishing such proof of disability, or inability to engage in any substantial gainful activity, "as may be required;" 42 U.S.C.A. §§ 416(i) (1), 423(c) (2). In general, "substantial gainful activity" must be viewed in the light of the individual's age, education, training and work experience. Teeter v. Flemming, 7 Cir., 1959, 270 F.2d 871, 77 A.L.R.2d 636; Aaron v. Fleming, D.C. Ala.1958, 168 F.Supp. 291; 20 C.F.R. Section 404.1502(a). Many recent decisions indicate that the industrial complex in which the claimant is found is also a factor to be considered in this regard. Graham v. Ribicoff, 9 Cir., 1961, 295 F.2d 391; Varnado v. Flemming, 5 Cir., 1961, 295 F.2d 693; Fowler v. Ribicoff, D.C.W.D.S.C.1961, 197 F.Supp. 508; Head v. Flemming, D.C.Or. 1960, 188 F.Supp. 297; Ferricks v. Flemming, D.C.E.D.Penn.1960, 188 F. Supp. 656; Jacobson v. Folsom, D.C.S.D. N.Y.1957, 158 F.Supp. 281. The foregoing considerations were succinctly summarized in Kerner v. Flemming, 2 Cir., 1960, 283 F.2d 916, where it was declared that a determination of substantial and gainful activity requires the resolution of (1) what the applicant can do, and (2) what employment opportunities exist for a man who can do only what the applicant can do. But cf. Stoliaroff v. Ribicoff, D.C.N.D.N.Y. 1961, 198 F.Supp. 587; Loftis v. Ribicoff, D.C.W.D.Mo.1961, 193 F.Supp. 469.

However, the actual extent of the claimant's burden of proving disability within the meaning of the Act appears to have received conflicting treatment under the cases which have dealt with the subject. Some decisions have taken a restrictive approach with regard to recovery of disability benefits. These cases often stress the claimant's burden of showing disability without discussing the amount of proof which he is required to produce; it is then said that the findings and inferences of the hearing examiner are conclusive if supported by substantial evidence appearing in the record when read in its entirety. Paull v. Ribicoff, D.C.Mont.1961, 197 F.Supp. 108; Stoliaroff v. Ribicoff, supra; Howell v. Flemming, D.C.Or.1960, 188 F.Supp. 223; Chesney v. Flemming, D.C. E.D.Tenn., 180 F.Supp. 437; Ussi v. Folsom, D.C.N.D.N.Y.1957, 157 F.Supp. 679. Under this line of cases, the indication is that not only must the claimant show that he is unable to do his usual or accustomed kind of work, but he also has the burden of showing that he cannot engage in any other type of substantial gainful activity. Dowling v. Ribicoff, D.C.S.D.N.Y. 1961, 200 F.Supp. 543; Craig v. Ribicoff, D.C.M.D.N.C.1961, 192 F.Supp. 479; Sampson v. Flemming, D.C.Kan.1960, 189 F.Supp. 725.

A less onerous burden on the claimant is prescribed in the exhaustive Randall v. Flemming, D.C.W.D.Mich.1961, 192 F. Supp. 111, wherein it was stated on page 123:

"It is not necessary that the plaintiff establish the complete absence of any opportunity for substantial gainful employment; he need only establish that he has become disabled from employment in any work or vocation in which he could profitably seek employment in the light of his physical and mental capacities and his education, training, and experience."

The decisions which construe the claimant's burden most liberally indicate that under certain circumstances no affirmative showing by the claimant of inability to engage in other employment opportunities is necessary. For instance, in Parfenuk v. Flemming, D.C.Mass. 1960, 182 F.Supp. 532, 536, Judge Wyzanski stated:

"It is quite enough if he (the claimant) offers evidence of what he has done, of his inability to do that kind of work any longer, and of his lack of particular experience and particular education for any other type of job. If there are other kinds of work which are available and for which the claimant is suited, it is the Secretary's burden to go forward to offer evidence of those types of work. Cf. Klimaszewski v. Flemming, supra."

This view of the claimant's burden was repeated in Whalen v. Ribicoff, D.C. Mass.1961, 197 F.Supp. 1; and Ellerman v. Flemming, D.C.W.D.Mo.1960, 188 F.Supp. 521. See also Music v. Ribicoff, D.C.E.D.Ky.1961, 195 F.Supp. 907. This approach seems to have been applied in Roop v. Flemming, D.C.W.D.Va.1960, 190 F.Supp. 820, 823, wherein it was stated:

"When a claimant proves that he has reached the age of fifty-nine, that he has had only four years of schooling, that the only work he has ever done is manual labor requiring physical strength and stamina, and that he has physical impairment of lungs, foot, and chest which incapacitates him to perform any of this type tasks, then he has

...