Smith v. Califano, 80-1133

• Decision Date: 18 September 1980
• Docket Number: No. 80-1133,80-1133
• Citation: 637 F.2d 968
• Parties: Leo R. SMITH, Appellant, v. Joseph A. CALIFANO, Jr., Secretary of the Department of Health, Education and Welfare. . Submitted under Third Circuit Rule 12(6) on
• Court: U.S. Court of Appeals — Third Circuit

Page 968

637 F.2d 968

Leo R. SMITH, Appellant, v. Joseph A. CALIFANO, Jr., Secretary of the Department of Health, Education and Welfare.

No. 80-1133.

United States Court of Appeals Third Circuit.

Submitted under Third Circuit Rule 12(6) on Sept. 18, 1980.

Decided Jan. 13, 1981.

Jerome J. Purcell, Merritt & Purcell, Pittsburgh, Pa., for appellant.

Stephanie V. Naidoff, Regional Atty., Joseph M. Masiuk, Asst. Regional Atty., Office of the Gen. Counsel, Region III, Dept. of Health, Education and Welfare, Philadelphia, Pa., Robert J. Cindrich, U. S. Atty., Stephen I. Goldring, Asst. U. S. Atty., Western District of Pennsylvania, Pittsburgh, Pa., for appellee.

Before ADAMS, HUNTER and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

This is an action under Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), to review a final decision of the Secretary of Health, Education and Welfare (Secretary) denying George R. Smith's claim for disability insurance benefits.

This case is not untypical of many Social Security cases which come before us for review. The Administrative Law Judge's (ALJ's) opinion is replete with the proper conclusionary terms which "justify" denial of the claim. The ALJ has decided every major issue of credibility against the claimant. Yet, when carefully reviewing the actual facts of record on which the ALJ presumably based his findings, it seems that the evidence in support of his adverse ruling is so slight that, upon consideration of the entire record, one must wonder whether his findings, particularly his credibility findings, were based on a mere speculative hunch or were reasoned findings. The able Magistrate who reviewed this record apparently had most of the same qualms we have. She noted that:

The review of this case is extremely difficult. Plaintiff's testimony of constant pain is compelling. However, it is subject to the credibility evaluation of the Administrative Law Judge.

Because the ALJ had "found plaintiff's testimony on severe daily pain not to be credible" the Magistrate recommended that the Secretary's motion for summary judgment be granted. We do not find a sufficient basis of record for the ALJ to make his adverse findings on credibility, and therefore this case must be resolved in favor of the plaintiff.

Because the Secretary's decision was not supported by substantial evidence, we reverse.

I.

On November 1, 1973, Smith filed for disability insurance benefits, stating that he was not able to engage in gainful employment during the period beginning in January of 1971 to the present because of a chronic ulcer condition. His application was denied on January 11, 1974 as was his Request for Reconsideration. On October 10, 1974, Smith requested a hearing before an ALJ and a hearing was held on January 22, 1976. The ALJ denied Smith disability benefits and the Appeals Council affirmed.

An appeal was taken from the Council's affirmance to the United States District Court for the Western District of Pennsylvania. The District Judge by Memorandum and Order dated July 1, 1977 remanded this case to the Secretary because of deficiencies in the findings of the first ALJ who denied claimant benefits. The record did not then contain evidence that Smith's former jobs, which the ALJ found he could perform, did not involve repetitive bending.

A hearing and supplemental hearing were held on remand and a different ALJ again denied Smith benefits. The Appeals Council affirmed the decision of the ALJ and Smith filed a Motion to Reopen. Upon the motion's denial, Smith appealed to the District Court. The case was assigned to a U. S. Magistrate for a report and recommendation.

The Magistrate filed her Report and Recommendation on November 30, 1979 in which, with seeming reluctance, she recommended that the Government's Motion for Summary Judgment be granted and that the decision of the Secretary, denying Smith's application for disability benefits under 42 U.S.C. §§ 416(i) and 423, be affirmed. The District Judge by Order of December 20, 1979, adopted the Magistrate's Report and Recommendation. Smith filed a timely Notice of Appeal to this court.

II.

Appellant, Leo R. Smith was born on January 12, 1928. He has a ninth grade education and, since 1943, with the exception of a brief stint in the Navy, has been employed in a variety of unskilled jobs. His last employment was in 1974, again in an unskilled position, and lasted for only three days.

In 1959, Smith was hospitalized and operated on for a perforated duodenal ulcer. He was rehospitalized in 1969 and again in 1971 for ulcer treatment. Finally, in January of 1973, he was hospitalized for gastrointestinal distress incident to his chronic ulcer condition. X-rays taken at that time revealed no ulcer activity and Smith was diagnosed by Dr. Herberg as having a spastic irritable colon.

On October 17, 1974 another X-ray was taken which showed evidence of an active ulcer crater. Dr. Kenneth Beers, Smith's personal physician and an associate of Dr. Herberg, wrote to the Social Security Administration on October 30, 1974 and reported that Smith had a history of chronic duodenal ulcer disease of at least 18 years' duration, chronic anxiety and a currently acute ulcer condition which was difficult to control medically. Dr. Beers concluded that in his opinion Smith was permanently and totally disabled. This view of the severity of Smith's illness was repeated in Dr. Beers' April 1976 report.

III.

Under 42 USC §§ 416(i), 423(d)(1)(A), an applicant for disability insurance benefits must establish "an inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment." An administrative decision to deny benefits will be upheld on review if supported by "substantial evidence." 42 USC § 405(g). "Substantial evidence" has been defined as "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, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). Despite the deference to administrative decisions implied by this standard, appellate courts retain a responsibility to scrutinize the entire record and to reverse or remand if the Secretary's decision is not supported by substantial evidence. Baerga v. Richardson, 500 F.2d 309 (3d Cir. 1974), cert. den. 420 U.S. 931, 95 S.Ct. 1133, 43 L.Ed.2d 403 (1975); Williams v. Finch, 440 F.2d 613 (5th Cir. 1971); Thomas v. Celebrezze, 331 F.2d 541 (4th Cir. 1964).

After reviewing the record below, we find at least two instances where the Secretary's decision was not supported by substantial evidence. First, the Secretary failed to give appropriate consideration to unrebutted medical evidence that Smith's ulcer condition rendered him disabled. Second, the Secretary failed to give appropriate consideration to Smith's testimony of severe pain. On the record of this case, the ALJ, upon whose decision the Secretary relied, drew an impermissible inference of no disability.

A.

In finding Smith not disabled, the ALJ relied on the responses of Dr. Herberg to two Pennsylvania Bureau of Vocational Rehabilitation questionnaires, dated November 1973 and July 1974. Dr. Herberg diagnosed spastic irritable colon and indicated that Smith suffered only slight debility. It is not clear whether Dr. Herberg, in reaching this conclusion, considered Smith's history of ulcer and severe pain as well as his spastic colon. In response to a request for "any other observable clinical findings pertinent to patient's total ability to function." Dr. Herberg noted Smith's history of ulcer and suggested contacting the surgeon who had operated on Smith for further information.

Contrasted with the report of Dr. Herberg, which deferred on the ulcer issue, is the October 1974 report of Dr. Beers where it was concluded that Smith was disabled and that he suffered from both the colon and ulcer conditions. The discrepancy between Dr. Herberg's and Dr. Beers' reports is explainable by the fact that Smith's ulcer did not re-erupt until after July of 1974. Dr. Beers' report suggests this by noting that Smith's visits were more frequent after September of 1974.

Thus, Dr. Beers' reports constitute unrebutted medical evidence that Smith's ulcer is disabling. Dr. Herberg's answer to the questionnaires does not contradict the existence of an ulcer problem but merely concludes that the spastic irritable colon would not cause debility and refers the Bureau to Smith's surgeon. Furthermore, Dr. Herberg's responses came prior to the October 17, 1974, X-rays which showed the existence of an active ulcer crater. The Secretary did not present any evidence of his own repudiating plaintiff's physician's report. The Secretary's decision is, therefore, unsupported by medical testimony whereas Smith's testimony stands unrebutted.

B.

Twice in Smith's case, an ALJ made basic errors in the findings of fact. The first time, the district judge was required to remand the case for further hearings because the ALJ's findings were not supported by the record. After the remand, the second ALJ made equally egregious errors in his findings. As the Magistrate noted:

Unfortunately, the (ALJ) ... mischaracterized the testimony in several respects. He referred to the vocational expert's testimony and stated. "It was his opinion that although claimant could not perform his previous jobs he could perform a variety of jobs at the sedentary level...." Actually, Mr. Getsie's (sic) testimony concerning jobs plaintiff could perform was based upon the assumption that plaintiff was able to perform sedentary work. Therefore, the statement that it was Mr. Getsie's (sic) opinion that plaintiff could perform sedentary jobs is incorrect. In addition, (the ALJ) reported that there was no evidence of any weight loss (Tr. 125) although Dr. Beers' report of October 30, 1974,...