Schauer v. Schweiker

• Decision Date: 12 April 1982
• Docket Number: No. 401,D,401
• Citation: 675 F.2d 55
• Parties: Vivian G. SCHAUER, Plaintiff-Appellant, v. Richard SCHWEIKER, in his official capacity as Secretary of the United States Department of Health and Human Services, Defendant-Appellee. ocket 81-6130.
• Court: U.S. Court of Appeals — Second Circuit

Page 55

675 F.2d 55

Vivian G. SCHAUER, Plaintiff-Appellant, v. Richard SCHWEIKER, in his official capacity as Secretary of

the United States Department of Health and Human

Services, Defendant-Appellee.

No. 401, Docket 81-6130.

United States Court of Appeals, Second Circuit.

Argued Dec. 15, 1981.

Decided April 12, 1982.

Ronald R. Benjamin, Binghamton, N. Y., for plaintiff-appellant.

Gregory A. West, Asst. U. S. Atty., Syracuse, N. Y. (George H. Lowe, U. S. Atty., N. D. N. Y., Syracuse, N. Y., on the brief), for defendant-appellee.

Before TIMBERS, KEARSE and CARDAMONE, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiff Vivian G. Schauer appeals from a judgment of the United States District Court for the Northern District of New York, Neal P. McCurn, Judge, affirming a final decision of the Secretary of Health and Human Services (the "Secretary") that denied Schauer's application for disability insurance benefits on the ground that she had not proven disability within the pertinent time period. The appeal raises questions as to the proper allocation of the burden of proof with respect to the disability of a claimant at a time subsequent to a proven disability. Because we conclude that the burden here remained on the claimant to prove the disability during that subsequent time period and that Schauer did not meet that burden, we affirm.

FACTS

Schauer contends that she has a psychiatric disability that entitles her to disability insurance benefits under the Social Security Act, as amended (the "Act"), 42 U.S.C. §§ 301-1397f (1976) (amended 1977-1981). ¹ Her past earnings entitled her to such benefits for any disabling condition that commenced on or before December 31, 1970, but not for such a condition commencing thereafter. On November 14, 1977, Schauer applied for benefits alleging that her psychiatric disability had existed since 1964.

The Social Security Administration ("SSA") denied the application, both initially and on reconsideration. Schauer then requested and received a hearing before an Administrative Law Judge ("ALJ"). The ALJ found that Schauer had established her disability for the period August 1964 through February 1966. However, he found that, although there was evidence of psychiatric disability after December 1975, Schauer had not proven any disability between February 1966, when her first period of disability ended, and December 1970, when her eligibility for benefits for post-1966 disabilities ended. Accordingly, the ALJ ruled that Schauer was entitled to no benefits for any period after 1966. Schauer appealed the ALJ's decision to the SSA Appeals Council, which upheld the denial of benefits for any period after 1966. In addition, although the Council apparently accepted the ALJ's factual finding that Schauer had been disabled in the 1964-1966 period, it held that Schauer was not entitled to disability benefits for that period because her application had not been filed within three years after the end of her disability, as required by §§ 216(i)(2)(E) and (F) of the Act, 42 U.S.C. §§ 416(i)(2)(E) and (F) (1976). This holding constituted the final decision of the Secretary.

Schauer sought judicial review in the district court under § 205(g) of the Act, 42 U.S.C. § 405(g) (1976) (amended 1980). The district court dismissed the complaint, thereby upholding the Secretary's decision, and this appeal followed.

Schauer does not contend that her disability for the 1964-1966 period, standing alone, would entitle her to an award of benefits; with respect to that period her application was filed nearly nine years late. Nor does she contend that any disability commencing after December 31, 1970, would entitle her to benefits; she did not meet the Act's earnings requirement after that date.

                What Schauer contends is that her application was timely and the earnings requirement was satisfied because her disability began in 1964 and was continuous from 1964 to date.  Recognizing that there was very little evidence-and none from doctors having psychiatric expertise-as to her condition during the period 1966 to 1975, Schauer argues that the burden was on the Secretary to show that Schauer's condition changed after the earlier period of disability.  2  She bases this contention on the assumption that she would have been awarded benefits for the disability that began in 1964 if she had applied for them in the 1960's and would still be receiving benefits if the Secretary had not terminated them.  Thus, she argues that the present case is the equivalent of a "termination case," i.e., a case in which the Secretary wishes to terminate benefits for a disability that has previously been established, and in which the Secretary bears the burden of proving that the disability has ended.  We find Schauer's argument unpersuasive.  Her major premise-that the Secretary bears the burden in a termination case-may well be unfounded.  And her minor premise-that the Secretary should also bear such a burden where the claimant has never proven a continuing disability-is unsound
                

DISCUSSION

The concept of "burden of proof" is particularly elusive in cases involving social security benefits. In part its elusiveness stems from the fact that proceedings for determination of a claimant's entitlement to benefits are not designed to be adversarial; the Secretary is not represented by counsel before the ALJ, and if the claimant is not represented by counsel the ALJ has an obligation " 'to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts....' " Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980) (quoting Gold v. Secretary of HEW, 463 F.2d 38, 43 (2d Cir. 1972)). In addition, the concept of burden of proof is difficult to define because the required quantum of proof in these proceedings is such that the same body of evidence may adequately support contradictory findings. Thus, a factual issue in a benefits proceeding need not be resolved in accordance with the preponderance of the evidence, and a factual determination by the Secretary must be given conclusive effect by the courts if it is supported by "substantial evidence." § 205(g) of the Act, 42 U.S.C. § 405(g) (1976), as amended by Pub.L.No. 96-265, § 307, 94 Stat. 458 (1980); Mathews v. Eldridge, 424 U.S. 319, 339 n.21, 96 S.Ct. 893, 904 n.21, 47 L.Ed.2d 18 (1976); Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Rivera v. Harris, 623 F.2d 212, 216 (2d Cir. 1980). "Substantial evidence" means " 'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Richardson v. Perales, supra, 402 U.S. at 401, 91 S.Ct. at 1427 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)).

When we speak of the burden of proof in a social security disability benefits proceeding, therefore, we are not concerned with which party should prevail on a given issue when there is evidence "adequate to support" both the affirmative and the negative of the factual proposition. Rather, we are concerned with which party should prevail when neither the affirmative nor the negative of the proposition is supported by "substantial evidence."

The Burden in a Termination Case

With this framework in mind, we turn to Schauer's underlying assumption that in a "termination" case the burden of proof is on the Secretary. It is undisputed that when a claimant applies for disability benefits the burden is on the claimant to establish disability for the period for which benefits are sought. See § 223(d)(5) of the Act, 42 U.S.C. § 423(d)(5) (1976), as amended by Pub.L.No. 96-265, § 309(a), 94 Stat. 459 (1980); Jock v. Harris, 651 F.2d 133, 135 (2d Cir. 1981); Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980); Gold v. Secretary of HEW, supra, 463 F.2d at 41. The authorities are not so clear, however, as to who bears the burden when benefits have been awarded and the Secretary later seeks to terminate those benefits. There is support for the proposition that in such a case the burden of proof shifts to the Secretary. See Cassiday v. Schweiker, 663 F.2d 745, 749 (7th Cir. 1981); Miranda v. Secretary of HEW, 514 F.2d 996, 998 (1st Cir 1975) (court declined to decide "abstractly" whether burden of proof in termination proceeding is on claimant or Secretary, but ruled that "once having found a disability, the Secretary may not terminate the benefits without substantial evidence to justify so doing," and remanded the case for further evidentiary hearings).

On the other hand, the Supreme Court and several lower courts have stated that even in a termination proceeding the burden remains on the claimant. The Supreme Court in Mathews v. Eldridge, supra, in the course of determining whether a hearing must precede the Secretary's suspension of disability benefit payments, gave a general description of termination procedures in terms that clearly indicated that the claimant has the burden of proving his continued disability in a termination proceeding. Thus, as a general matter, the Court stated that "(i)n order to establish initial and continued entitlement to disability benefits a worker must demonstrate that he is (disabled within the meaning of the Act)," 424 U.S. at 336, 96 S.Ct. at 903 (emphasis added), and that "(t)o satisfy this test the worker bears a continuing burden of showing, by means of 'medically acceptable clinical and laboratory diagnostic techniques,' " that he has an impairment of the required severity, id. (emphasis added). Similarly, in Marker v. Finch, 322 F.Supp. 905, 909-10 (D.Del.1971), the court, in reviewing the Secretary's decision to terminate a claimant's disability benefits on the ground that the disability had ceased, stated that:

the standards to be applied by the Court in reviewing a termination of benefits do not differ materially from those applied in reviewing a denial of benefits.... In a case in...