Reyes v. Secretary of Health, Education and Welfare, 71-1895.

Decision Date23 February 1973
Docket NumberNo. 71-1895.,71-1895.
Citation476 F.2d 910
PartiesSantos REYES v. The SECRETARY OF HEALTH, EDUCATION AND WELFARE.
CourtU.S. Court of Appeals — District of Columbia Circuit

L. Patrick Gray, III, Asst. Atty. Gen. at the time the brief was filed, Harold H. Titus, Jr., U.S. Atty., Kathryn H. Baldwin and James C. Hair, Jr., Attys., Dept. of Justice, were on the brief for appellant.

Rosalyn B. Bell, Washington, D.C., was on the brief for appellee.

Before Mr. Justice CLARK,* of the Supreme Court of the United States, and MacKINNON and ROBB, Circuit Judges.

MacKINNON, Circuit Judge:

This action was instituted by claimant-appellee Reyes in the District Court pursuant to section 205(g) of the Social Security Act (42 U.S.C. § 405(g)) for review of the final decision of the Secretary of Health, Education and Welfare denying him certain Social Security benefits. The District Court granted plaintiff's motion for summary judgment and thereby reversed that administrative determination.1 This appeal by the Secretary followed.

In 1968, claimant applied for child's disability insurance benefits under section 202(d)(1)(B)(ii) of the Social Security Act (42 U.S.C. § 402(d)(1)(B)(ii))2 which provides for an award of benefits to an individual who is the son of and dependent upon an old-age beneficiary, if such individual is under a disability which began before he attained the age of eighteen. Claimant's application was denied by the Social Security Administration initially on April 14, 1969 (Tr. 38-39) and again on reconsideration on July 25, 1969 (Tr. 47-48). Claimant then requested review by a Hearing Examiner (Tr. 16-17).3 The Hearing Examiner found that the medical evidence indicated, without clinical findings, that claimant had received some treatment for pulmonary tuberculosis in 1933 or 1934 (when he was 11 or 12), but that the disease apparently had been inactive or non-existent thereafter until 1964 when it was detected and treated (Tr. 13-14). Accordingly the Hearing Examiner found that claimant's impairment was not of such severity before age 18 as to prevent him from engaging in substantial gainful work and denied his application (Tr. 14-15). Claimant then sought review of the Hearing Examiner's decision by the Appeals Council (Tr. 9-11) and, upon reconsideration of the entire record, the Appeals Council affirmed the Hearing Examiner's decision and this became the final decision of the Secretary on December 30, 1969 (Tr. 8). This action in the United States District Court for the District of Columbia ensued and resulted in a reversal of this administrative decision from which the Secretary now appeals.

Claimant, a resident of the Philippines, was born October 25, 1922 and is the unmarried son of a Social Security old-age beneficiary. As such he is eligible for the benefits in question if he "is under a disability (as defined in section 42 U.S.C. § 423(d)) which began before he attained the age of 18." In support of his application, claimant stated that as a child he tired easily, was confined mostly to bed and had to force himself to go out and play with other children (Tr. 46). He also related that he was compelled to quit school after the fourth grade because of his ailment and that he has never worked except to perform a few simple farm chores (Tr. 46). The medical evidence submitted by claimant consists of the reports of two physicians and a radiologist. One physician's two-sentence report made in 1968 noted that claimant presently complained of certain tubercular symptoms and that he remembered treating him for pulmonary tuberculosis in 1933 (Tr. 57-58). Another doctor reported in 1968 that he had treated claimant with anti-tuberculosis drugs since about 1964. Also, a radiologist interpreted a 1968 chest x-ray as "minimal" tuberculosis (Koch's pulmonary) and a physician's review of that x-ray resulted in the conclusion that it showed "minimal to moderate fibro-nodular tuberculosis" (Tr. 62-63). This physician also supplied a supplementary report indicating that the claimant had not been hospitalized under his care (Tr. 59-60) and the claimant himself makes no assertion that he received any kind of treatment during the twenty-six years between 1938 and 1964 (Tr. 56).

For purposes of section 202(d), under which appellee asserts his claims, the term "disability" is exhaustively defined in section 223(d) of the Act:

(d) Same; disability.
(1) The term "disability" means —
(A) inability to engage in any 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) For purposes of paragraph (1)(A)
(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. For purposes of the preceding sentence (with respect to any individual), "work which exists in the national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.
* * * * * *
(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.
* * * * * * (5) An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Secretary may require.

42 U.S.C. § 423(d). Further standards to aid in determining "disability" are provided by Social Security regulations. 20 C.F.R. § 404.1501 et seq. (Subpart P).

The Hearing Examiner's determination that appellee had failed to demonstrate the existence of a disability within the meaning of § 223(d) prior to age 18, was certainly supported by substantial evidence and should have been sustained. In these matters deference is to be afforded the administrative decision and it is not for the trial court to review de novo the Secretary's final decisions as to findings of fact and the reasonable inferences to be drawn therefrom.4

Here there is no clinical, diagnostic evidence as to the claimant's disease prior to age 18, but only the recollection, 35 years removed, of his current doctor. There is absolutely no objective evidence of claimant's disability in the thirty years between 1934 and 1964. The only clinical, diagnostic medical evidence we have shows a minimal to moderate tuberculosis existing about 1964. Even at this time claimant was not hospitalized and his response to drug therapy was recorded as "quite favorable" (Tr. 50). Under these circumstances it cannot be said that the Secretary's denial of benefits due to a failure of appellee to bear his evidentiary burden was arbitrary or capricious. Even assuming, arguendo, that appellee can be said to be presently totally disabled within the meaning of § 223(d), there is no showing that this is the same condition that began in 1933 and which at that time and at all times subsequent thereto was equally disabling to such a degree that appellee was prevented from engaging in substantial gainful work.5 The Hearing Examiner clearly had substantial evidence in the record before him upon which he could conclude that the condition either did not exist or was wholly inactive6 until 1964 (Tr. 14).

Claimant also contends that he was denied due process of law in that he was not afforded a hearing in the Philippines.7 We find this argument without merit. Even if a nonresident alien were entitled to the protections of the due process clause in a case like this,8 it is exceedingly clear that the Secretary's regulation requiring that all proceedings in the administration of the Act which cannot be conducted by mail, including hearings, must be conducted only within the boundaries of the United States,9 is clearly reasonable.10 It is neither an arbitrary requirement nor is it unduly discriminatory.

We therefore find the Secretary's final decision to have been correct and supported by substantial evidence and accordingly the District Court erred in setting it aside.

Reversed.

* Mr. Justice Tom Clark, United States Supreme Court, Retired, sitting by designation pursuant to 28 U.S.C. § 294(a) (1970).

1 The District Court made no findings of fact and conclusions of law, reversing the Secretary in a brief order. While this is legally sound under Fed.R.Civ.P. 52, since it was issued pursuant to a Rule 56 motion for summary judgment, it renders review particularly difficult in cases like this. We have remarked that where the trial court reverses an agency decision, apparently relying "on a lack of substantial evidence, it should at least state which findings are unsupported." Einbinder v. Novinger, Inc., 115 U.S.App.D.C. 395 at n. 3, 320 F.2d 714 at n. 3 (1963). See also, Gardner v. Bishop, 362 F.2d 917 (10th Cir. 1966); Banks v. Celebrezze, 341 F.2d 801 (6th Cir. 1965). In Celebrezze v. Zimmerman, 339 F.2d 496 (5th Cir. 1964), involving an appeal under the Social Security Act in which the District Court similarly reversed the Secretary of H.E.W. on a summary judgment motion, the court stated:

In the rare case in which it is appropriate for the trial court to reverse the Secretary's findings because there is no substantial evidence to support them it would make it much easier for this Court, on appeal, to have the benefit of the trial court's analysis of the evidence,...

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